The Australian Licenced Aircraft Engineers Association v Forstaff Avalon Pty Limited T/A Forstaff Aviation

[2013] FWC 4639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739—Dispute resolution

The Australian Licenced Aircraft Engineers Association
v
Forstaff Avalon Pty Limited T/A Forstaff Aviation
(C2013/3144)

Airline operations
DEPUTY PRESIDENT BOOTH	SYDNEY, 24 JULY 2013

Enterprise agreement – dispute about matter arising under agreement – redundancies – whether genuine consultation – s.739 Fair Work Act 2009.

[1] In this matter The Australian Licenced Aircraft Engineers Association (the ALAEA) asks the Fair Work Commission (the Commission) to make orders arising out of an application pursuant to s.739 of the Fair Work Act2009 (the Act) to deal with a dispute with Forstaff Avalon Pty Limited T/A Forstaff Aviation (Forstaff) in relation to the retrenchment of licensed aircraft engineers at the Qantas heavy maintenance base in Avalon, Victoria.

[2] The ALAEA made an application 1 on 4 February 2013 and a conference was conducted on 13 February 2013, however the dispute was not resolved. On 14 February 2013 the ALAEA made a further application2 in relation to the same dispute and it is this application that is now before the Commission, the earlier application having been discontinued on 27 February 2013. A directions hearing was held on 26 February and the matter was listed for arbitration on 11 April 2013 with a timetable determined for submissions and witness statements to be filed that was later amended. By agreement between the parties the matter did not proceed on 11 April due to the illness of an important witness for Forstaff and the matter was heard before me on 20 May 2013. The matter could not be concluded within the day and written closing submissions were received from the ALAEA on 27 May 2013 and Forstaff on 10 June 2013. On 17 June 2013 my Chambers contacted the representative of the ALAEA and asked them if they wished to reply to the Forstaff closing submissions. Submissions in reply were lodged on 25 June.

[3] Mr Victory, solicitor, Maurice Blackburn Lawyers, was given permission to appear for the ALAEA and Ms Mansfield, solicitor, Ashurst Australia, was given permission to appear for Forstaff. Evidence for the ALAEA was given by Mr Brad Stewart, National Union Organiser, and for Forstaff by Mr Con Raphael, Human Resources Manager, and Mr Peter Melhuish, General Manager Industrial Relations, Chandler Macleod Group Limited.

[4] The Commission’s jurisdiction to hear the matter was not challenged by Forstaff and I have concluded that I have jurisdiction pursuant to clause 22 - Disputes Avoidance and Settlement Procedure of the Jobs Australia (Aircraft Maintenance and Refurbishment) Avalon Site Agreement 6 (the Agreement) to arbitrate to resolve the dispute.

Contentions

[5] The ALAEA contend that Forstaff did not consult with them regarding change and the process to be adopted in respect of retrenchments as required by the Agreement and s.786 of the Act.

[6] Forstaff reject this contention and say that consultation as required by the Agreement took place.

Unfair dismissal applications

[7] Five individuals who were dismissed by Forstaff in circumstances connected to the dispute before me have lodged unfair dismissal applications pursuant to s394 of the Act. These applications are:

U2013/1582 - Bhanja v Forstaff Avalon Pty Limited T/A Forstaff Aviation

U2013/1021 - Addison v Forstaff Avalon Pty Limited T/A Forstaff Aviation

U2013/963 - Trajcevski v Forstaff Avalon Pty Limited T/A Forstaff Aviation

U2013/857 - Douglas v Forstaff Avalon Pty Limited T/A Forstaff Aviation

U2013/681 - Edwards v Forstaff Avalon Pty Limited T/A Forstaff Aviation

[8] By agreement of the parties these matters were not listed pending the outcome in this matter. A threshold question in each unfair dismissal application is likely to be whether the dismissal is a case of genuine redundancy and whether the person is a person protected from unfair dismissal. The decision in this matter is relevant to a finding in this regard.

Order sought

[9] The ALAEA seek the following order:

1. The Tribunal declares that the Respondent has contravened clause 3 of the Jobs Australia (Aircraft Maintenance and Refurbishment) Avalon Site Agreement 6 by failing to consult with the ALAEA in relation to the redundancies at Avalon.

2. That the Respondent is to reinstate all employees made compulsorily redundant since 11 February 2013 with no loss of wages or detriment to employees made redundant.

3. That the Respondent provide, in writing, any information sought by the Applicant in the correspondence dated 24 January 2013 and in meetings between the parties which has not been supplied including, but not limited to, the start dates and classifications of all employees of the respondent.

4. The Respondent is to consult with the Applicant, including by providing relevant information, in accordance with clause 3 of the Jobs Australia (Aircraft Maintenance and Refurbishment) Avalon Site Agreement 6 in relation to the redundancies.

5. The Respondent is not to implement any major changes, including but not limited to redundancies, until it has properly consulted with the Applicant in accordance with clause 3 of the Jobs Australia (Aircraft Maintenance and Refurbishment) Avalon Site Agreement 6.

[10] The ALAEA however say that if the Commission is not minded to make the order sought then the dispute should be resolved by arbitration as the Commission sees fit.

[11] Forstaff contend that the order sought should not be made by the Commission because it is, at least in part, ultra vires the Act and because, in effect, the ALAEA have nothing to complain about concerning their conduct.

Background

[12] Forstaff provides aircraft maintenance and refurbishment services to Qantas Airways Ltd (Qantas) at the Qantas heavy maintenance base in Avalon. Qantas also directly employs workers at Avalon. Forstaff is a division of the Chandler Macleod Group Limited (CML), a major Australian publicly listed recruitment, labour hire and human resource consulting company. Forstaff is the entity through which CML provides aircraft engineers and aircraft engineering support personnel to the Qantas heavy maintenance facility at Avalon.

[13] Qantas is the only customer to which Forstaff provide labour at Avalon. Qantas issues Forstaff with a work order designating the number of workers Qantas requires Forstaff to supply, according to the type of aircraft maintenance and refurbishment work Qantas wants performed.

[14] Qantas has been rationalising its heavy maintenance facilities since around 2007 when it closed its Sydney heavy maintenance facility. In 2012, it closed its heavy maintenance facility at Tullamarine. The heavy maintenance work Qantas has been allocating to the Avalon facility has been steadily declining.

[15] On 8 November 2013 Qantas issued a revised work order to Forstaff. This work order provided the labour requirements of Qantas as at 30 April 2013, described as headcount. It also indicated its expectations of headcount at 31 January 2013 described as an ‘interim checkpoint’ and licence requirements at both 31 January 2013 and 30 April 2013.

[16] The notion of the interim checkpoint was in dispute between Qantas and Forstaff, who had decided to meet the Qantas end date of 30 April 2013 without an interim checkpoint. Qantas’s requirement for it was not conveyed to employees or the unions.

[17] On the same day, Qantas announced to the combined Qantas and Forstaff workforce at Avalon that employment would be reduced at the Avalon site by approximately 250.

[18] Forstaff acknowledges its obligation to consult with employees and where requested, their representatives, arising from clause 3 of the Agreement.

[19] The ALAEA presence in the workplace comprises members of the ALAEA, elected workplace delegates and elected Councillors of the ALAEA. They are complemented by ALAEA full time officials. Not all employees are members of the ALAEA. Some are members of three other employee organisations, the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU), The Australian Workers’ Union (AWU) and the National Union of Workers (NUW) and others are not members of any union.

[20] The relationship between the ALAEA and Forstaff was described by Mr Raphael as “seriously adversarial”, “deeply unhappy” and “troubled”. 3

[21] The initial timetable for the employment reduction program was firstly calling for expressions of interest for voluntary redundancy (EOI process) between 3 December 2013 to 24 January 2013, secondly selecting employees for voluntary redundancy between 25 January 2013 and 22 February 2013 and lastly initiating compulsory redundancies by 30 April 2013.

[22] Forstaff established a program of consultation meetings with unions including the ALAEA delegates, Councillors and full time officials and a program of direct communications with the Forstaff workforce, comprised of toolbox meetings and staff notices.

[23] On 11 January 2013 Qantas advised Forstaff that they intended to enforce the interim checkpoint and Forstaff responded, without advising the ALAEA about the disputed interim checkpoint, by agreeing with Qantas to accelerate the employment reduction program. Forstaff told the ALAEA that Qantas wanted the retrenchments accelerated. In effect a new interim checkpoint of 15 March 2013 was determined and involuntary retrenchments were brought forward to commence on 4 February 2013 with 195 retrenchments to be made by 15 March 2013 and the balance by 30 April 2013. This was advised to the ALAEA on 17 January 2013.

[24] On 4 February 2013 the ALAEA notified a dispute to the Commission and conciliation was conducted on 13 February before me. Forstaff decided to postpone retrenchments pending the outcome of the conciliation which in the event was unsuccessful.

[25] Between 14 February and 30 April 2013 230 employees were retrenched by Forstaff with two final retrenchments taking place on or about 6 May 2013.

[26] On the date of the hearing of this matter Forstaff indicated that there was no future redundancy program announced or contemplated.

Consultation obligations

[27] The Act provides for the Commission to make orders if it is satisfied that an employer has failed to consult a registered employee association in circumstances where a decision has been made to terminate the employment of 15 or more employees for certain reasons. Section 786 of the Act reads as follows:

786 FWC may make orders where failure to notify or consult registered employee associations about terminations

(1) The FWC may make an order under subsection 787(1) if it is satisfied that:

(a) an employer has decided to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons; and

(b) the employer has not complied with subsection (2) (which deals with notifying relevant registered employee associations) or subsection (3) (which deals with consulting relevant registered employee associations); and

(c) the employer could reasonably be expected to have known, when he or she made the decision, that one or more of the employees were members of a registered employee association.

Notifying relevant registered employee associations

(2) An employer complies with this subsection if:

(a) the employer notifies each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, of the following:

(i) the proposed terminations and the reasons for them;

(ii) the number and categories of employees likely to be affected;

(iii) the time when, or the period over which, the employer intends to carry out the terminations; and

(b) the notice is given:

(i) as soon as practicable after making the decision; and

(ii) before terminating an employee’s employment in accordance with the decision.

Consulting relevant registered employee associations

(3) An employer complies with this subsection if:

(a) the employer gives each registered employee association of which any of the employees was a member, and that was entitled to represent the industrial interests of that member, an opportunity to consult the employer on:

(i) measures to avert or minimise the proposed terminations; and

(ii) measures (such as finding alternative employment) to mitigate the adverse effects of the proposed terminations; and

(b) the opportunity is given:

(i) as soon as practicable after making the decision; and

(ii) before terminating an employee’s employment in accordance with the decision.

[28] The ALAEA contends that this provision of itself gives rise to an obligation to consult and the failure to do so would be a failure to comply with this provision of the Act.

[29] The Explanatory Memorandum to the Fair Work Bill 2008 states:

“Clause 786 – FWA may make orders where failure to notify or consult registered employee associations about terminations

2813. Subclause 786(1) identifies the circumstances when FWA may make orders in relation to a failure to notify or consult a registered industrial association. The orders may be made if FWA is satisfied that:

the employer has decided to terminate the employment of 15 or more employees for reasons of an economic, technological, structural or similar nature, or for reasons including such reasons (paragraph 786(1)(a));

the employer has failed to comply with subclause 786(2) (notifying relevant registered employee associations) or subclause 786(3) (consulting relevant registered employee associations) (paragraph 786(1)(b)); and

the employer could have reasonably expected to have known that one of more of its employees were members of a registered employee association when the decision was made (paragraph 786(1)(c)).

2814. An employer complies with subclause 786(2) if the employer gives the relevant registered employee association the specified notification as soon as practicable after making the decision, but before terminating an employee’s employment on the basis of the decision.

2815. An employer complies with subclause 786(3) if the employer gives the relevant registered employee association an opportunity to consult about certain measures as soon as practicable after making the decision, but before terminating an employee’s employment on the basis of the decision.”

[30] The Agreement provides for consultation in clause 3 - Consultative Arrangements which reads as follows:

“3. CONSULTATIVE ARRANGEMENTS

3.1 Where the company proposes to introduce significant business initiatives or major changes, which have a demonstrable impact on employees, the company will, prior to introduction of the change, consult with the employee(s), and when requested by an employee(s) a representative of their choosing which may include a union representative, who may be affected by the proposed changes as early as practicable. A demonstrable impact on employees will arise in circumstances such as major changes in technology, outsourcing, or the composition, operation or size of the company’s workforce or in the skills required, the elimination or diminution of job opportunities.

3.2 The company will consult with the employees affected and their representatives on the introduction of the changes referred to in clause 3.1, the effect the changes are likely to have on employees, and where possible the measures to avert or mitigate the adverse effects of such changes on employees. Further, the company will give consideration to matters raised by the employees and/or their representatives.”

[31] Schedule B, Part C - Shortage of Work is also of relevance. It reads as follows:

“Part C Shortage of Work

C1 In the event that there is a shortfall in available work the provisions of Clause 11.4 applies to employees then the following:

C1.1 Should it be necessary pursuant to Clause 29 - Retrenchments for a reduction in employee numbers (retrenchments) then the following process will apply:

C1.1.1 Expressions of Interest for retrenchment will be called for. An employee expressing an interest in retrenchment may be retrenched subject to skill requirements.

C1.1.2 Where following retrenchments skill shortages exist the company will where possible retrain remaining staff.

C2 Should there not be enough retrenchments following the Expression of Interest process then the principle of Last on First Off will apply across the Avalon site.”

[32] Clause 11.4 relates to temporary stand down of employees and clause 29 relates to the calculation of redundancy pay.

[33] To understand whether the factual circumstances of this dispute leads to the conclusion that Forstaff failed in their obligation to consult the ALAEA concerning the employment reductions, it is useful to review decisions of the Commission, its predecessors and the Federal Court on the obligation to consult.

[34] In 1967, in the course of hearing an application for variation of the Clerks (Oil Companies) Award 1966 concerning job security, in the context of the introduction of computers into the workplace, an application pursuant to s.34 of the Conciliation and Arbitration Act1904 that the matter be heard by a Full Bench of the Conciliation and Arbitration Commission was upheld. In its decision (the Clerks [Oil Companies] decision) the Full Bench made some remarks which could be seen as laying the foundation for some of the later deliberations of the Conciliation and Arbitration Commission in its various future incarnations. It said:

“When employers are contemplating the introduction of computers and other automatic devices which may have serious effects on employees such as termination of employment or transfer interstate it is essential that both the employees and the union concerned should be informed of all the planning as soon as possible. Many real human problems may be involved which may not be known to company executives and they, with the best will in the world, may take steps which do not help to solve them. It is our view that employees and their welfare are as important in the planning of a change of the kind we have had to consider as any other aspect of the change and that they, both individually and through their union, should be brought in at the planning stage. When brought into the planning both employees and the union should in their turn attempt to understand the problems which the employer faces and cooperate with him to try to find a reasonable solution”. 4

[35] Two principles stand out to me from this passage. Firstly, the importance of involvement at the planning stage, before change is irrevocable and, secondly, the responsibility of those “brought into planning” to reciprocate by engaging constructively and with an appreciation of the instigator’s interests.

[36] Fast forward to August 1984 and the Conciliation and Arbitration Commission determined the application by the Australian Council of Trade Unions (ACTU) in what became known as the Termination, Change and Redundancy Test Case (TCR Case). 5 Considering the section of the application that concerned the introduction of change into organisations, the Full Bench noted that it was contended that the need for the provisions sought were supported by, inter alia, the Clerks [Oil Companies] Decision. However, the Full Bench decided to “hasten slowly in the setting of new standards”6 and decided to require consultation with employees and their representatives as soon as a firm decision has been taken about major changes in production, program, organisation, structure or technology which are likely to have significant effects on employees. In response to the ACTU claim concerning circumstances of redundancy the Full Bench endorsed the Clerks [Oil Companies] Decision when they said in relation to the passage quoted above:

“Although this was said in the context of retrenchments due to technological change, we would endorse those sentiments irrespective of the cause of redundancy”. 7

[37] In relation to the timing of the commencement of consultation they say:

“Nevertheless, we believe that it is of fundamental importance to involve employees and their representatives in the problems of redundancy as soon as a firm decision has been taken that retrenchments may be necessary and we are prepared to make an award provision to that effect.

We have taken the expression “as soon as a firm decision has been taken” from the NLAC Guidelines and we are not prepared to go any further, particularly having regard to the fact that our decision will apply to redundancy, whatever may be the cause.

However, we would indicate that we are not opposed to the concept of a timetable for discussions on the provision of suitable material. Indeed, we feel that sufficient time must be allowed and sufficient material provided if discussions are to be satisfactory. Nevertheless, we are not prepared to award general and detailed provisions such as those set out in the union claim.” 8

[38] In December of that same year the Full Bench reconvened due, in part, to representations that had been made about the form of the order arising from the decision made in August. They said:

“We also believe that the obligation to notify employees and the union or unions should only apply when an employer has made a definite decision to make major changes. Such a provision is more appropriate than the expression we used in our draft order “where an employer proposes to make major changes”. 9

[39] The Full bench went on to say:

“We have decided also to include in our award an obligation for the employers to discuss with employees and the union or unions measures to avert or mitigate the adverse effects of the employer's decision. Further, although we believe that a requirement to give prompt consideration to matters raised by employees and their representatives in discussions is implicit in the clause, we are prepared to add the requirement to give prompt consideration.” 10

[40] The emphasis of the Full Bench was on consulting for the purpose of averting or mitigating the adverse effects of the employer’s decision. The trigger for the consultation was a ‘definite decision to make major changes’ but the Full Bench expected the opportunity to be available to modify the decision in order to avert or mitigate the effects of the decision.

[41] In 1998 a Full Bench of the Australian Industrial Relations Commission (AIRC) in Construction, Forestry, Mining and Energy Union and The Newcastle Wallsend Coal Company Pty (the Gretley Colliery decision) 11 considered an appeal against a decision of a single member at first instance to decline to issue orders pursuant to ss.170GA and 170GB of the Workplace Relations Act1996, sections that were in similar terms to s.786 of the Act concerning notification of and consultation in relation to termination of employment for certain reasons. In this case, the economics of the Gretley Colliery were compromised and the owners decided to close the mine and place it on care and maintenance. After disposing of the question of the dates of termination of employment of the employees, the Full Bench went on to consider whether the owners of the mine failed to provide the relevant information, or an opportunity to consult, before the terminations occurred. The Full Bench found that the owners had provided the relevant information but did not provide an opportunity to consult because by the time the opportunity to consult was presented an irrevocable decision to close the mine had been made. They said at paragraphs 72 - 74:

“[72] We do not think that the discussions which took place prior to 2 July 1998 can properly be characterised as constituting an opportunity to consult within the meaning of s.170GA(1)(b). The earliest it can be said that the company decided to terminate anyone's employment was on 29 June 1998. No opportunity to consult was provided between 29 June 1998 and the letter of 2 July 1998.

[73] In circumstances where the respondent had made an “irrevocable decision” to place the mine on care and maintenance indefinitely and consequently to terminate the employees’ employment any subsequent offer to consult cannot be said to satisfy the requirements of s.170GA(1)(b).

[74] Section 170GA(1)(b) speaks in terms of providing an opportunity to consult with the employer on, among other things, ‘measures to avert… the terminations’. After 3 July 1998 any consultation with the respondent about measures to avert the terminations was rendered nugatory by the fact that the respondent had already made an ‘irrevocable decision’ to terminate the employees’ employment”.

[42] And at paragraph 80:

“[80] In this regard we wish to emphasise that to establish that a real or meaningful opportunity to consult has been provided it is not necessary to show that consultation actually took place. It is only necessary to show that there was a real or meaningful opportunity to consult. The union could not refuse to take up an offer to consult and then claim that the employer did not satisfy s.170GA(1)(b). Nor is it necessary for the consultation process to result in any change in the employer's decision. Section 170GA(1)(b) relates to consultation not co-determination.”

[43] This decision reinforces the principle underpinning the decision in the TCR case that there must be a real prospect of modifying the decision although the test is not that the consultation occurred, but that the opportunity was provided, nor that the decision was modified, but that it was possible to be modified.

[44] More recent decisions of the Commission and its predecessor tribunals have elaborated this principle.

[45] In Communications , Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Vodafone Network Pty Ltd (the Vodafone case) 12 Smith C, as he then was, found at paragraphs 19-20 that:

“[19] Vodafone did not, as soon as practical, after so deciding and in any event before terminating an employee's employment pursuant to such a decision, inform the CPSU or the CEPU about the terminations and the reason for them; the number and categories of employees likely to be affected, and the time period over which it intended to carry out the terminations.

[20] I also find that Vodafone did not, as soon as practicable after deciding to terminate and in any event before terminating an employee's employment pursuant to such a decision, give the CPSU and the CEPU an opportunity to consult on measures to avert or minimise the terminations and/or to mitigate the adverse effects of the terminations.”

[46] His reasoning at paragraph 25 is based on this principle:

“[25] In deciding whether or not to make the orders sought I have considered the importance of consultation. Consultation is not perfunctory advice on what is about to happen. This is a common misconception. Consultation is providing the individual, or the other relevant persons, with a bona fide opportunity to influence the decision maker.”

[47] When Smith C again considered an employment reduction program at a telecommunications service provider in Communications , Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Optus Administration Pty Limited 13 he decided to order the provision of certain information by Optus to the union.

[48] At paragraphs 68-69 he says:

“[68] This is material which should have been made available to the CEPU at an early stage to allow it to contribute to the decision-making process. Given the ongoing relationship of the parties and the difficult circumstances facing the sector at the present time I propose to order that this information be made available within 10 working days. If there is a future round of redundancies then the union will be in a position of having information that it should have had in this round of redundancies. In terms of section 170GA(2) this will put the union (as nearly as can be done) in the same position as if Optus had informed it properly.

[69] This order should also serve to put consultation in its proper perspective and assist in giving effect to the Convention.”

[49] In this decision he is making it clear that it is the quality of information as well as its timeliness that provides the precondition for consultation.

[50] In Telstra Corporation Limited v Communications , Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 14 a Full Bench of the AIRC was considering an appeal by both parties to the decision of Smith C at first instance concerning the application of the Telstra Redundancy Agreement 2002. Smith C had found that Telstra did not consult as required by the Telstra Redundancy Agreement 2002 and ordered the reinstatement of some affected employees. The Full Bench granted Telstra leave to appeal, declined the CEPU’s leave to appeal and upheld the Telstra appeal. However, in so doing, they accepted Smith C’s findings in relation to consultation while rejecting his remedy of reinstatement.

[51] In so doing they said at paragraphs 21 - 23:

“[21] At the outset it is useful to give some consideration to the meaning of the term “consult.” In this case the Commissioner referred to the obligation to provide an opportunity to consult in these terms:

‘There does not seem to be much between the parties in relation to the underlying principles about consultation; namely, that it must be genuine with an opportunity to influence the decision maker but not be a frustrating barrier.’

[22] The New Shorter Oxford English Dictionary gives as the primary meaning of the verb ‘consult’: ‘deliberate, take counsel, confer (with someone; about, upon a matter)’. The Macquarie Concise Dictionary defines ‘consult’ as ‘to seek counsel from, ask advice of’. While dictionary definitions can shed some light on the term, it must be seen in context. The context of cl.7.3(b) is an obligation to provide an opportunity to consult about measures to avert proposed redundancies and to mitigate the adverse effects of proposed retrenchments. It is clear from cl.7.2 that it is only once decisions to close a site and to retrench employees have been made that an obligation arises under cl.7.3(b). Nevertheless Telstra must give the unions an opportunity to persuade it that the relevant decisions should be modified or revoked. In some cases it may not be so much a question of reviewing a decision but of preparedness to consider actions which might assist employees to better manage the effects of the termination on themselves and their families or to find alternative employment. Such issues do not appear to arise in the present case which, as will be shown, was more concerned with attempts by the union to persuade Telstra to redeploy certain employees who were facing retrenchment.

[23] There is no obligation, however, to do other than provide an opportunity to consult. A refusal to modify or revoke a decision of itself could not be regarded as establishing that the obligation had not been discharged. If, on the other hand, it is clear that while agreeing to meet the union Telstra never contemplated a review of the relevant decision or decisions, it must follow that no opportunity to consult was in fact provided.”

[52] In 2008 the Federal Court considered the approach taken to the implementation of change at the Central Queensland University. In National Tertiary Education Industry Union v Central Queensland University 15 Logan J awarded penalties against the Central Queensland University for breach of the consultation provisions of the relevant agreement.

[53] In paragraphs 19-22 of his decision he said:

“19. On 20 June 2007, the Union filed an application in the Australian Industrial Relations Commission (‘the Commission’) pursuant to s.709 of the Workplace Relations Act. The University was the respondent to that application. The purpose of the proceeding in the Commission was to restrain the implementation by the University of the decision that came to be reached not to renew 34 fixed term appointments when they expired on 30 June 2007. An arbitration hearing was conducted before Senior Deputy President Richards in the Commission on 29 June 2007. His Honour handed down his decision in respect of the application that same day, in National Tertiary Education Industry Union v Central Queensland University [2007] AIRC 537, PR977528. In so doing he adopted the following interpretation of cl 22 of the Collective Agreement:

[35] However sub clause 22.3 cannot be read separately from sub clause 22.2 of the Agreement. Rather, it is logically interconnected with the structure of the preceding sub clause. It is interconnected in that the consultation described in sub clause 22.3 can only occur in the context of the University’s decision making having only reached a stage whereby it has decided only that change may be necessary and that it may have significant effects if implemented.

[36] It is because the consultation is to take place in this particular context that the meaningful consultation is given effect as referred to in sub clause 22.3. And it is only in that decision-making stage that the employees and/or their representatives can consider and propose alternatives to managing change.

[37] It is sufficiently apparent that at this decisional stage the University might propose the strategies it has developed for consultation and discussion. This is made clear by the inclusion of the verb form ‘to consider’ in sub clause 22.3 of the Agreement. But these must be strategies that are proposed only at the particular embryonic stage in the evolution of the University’s decision making described above. The University cannot have come to a final or even a provisional conclusion on the implementation of these strategies before the consultation in clause 22 can take place.

[38] Sub clause 22.5 prescribes further the steps the University must take at the completion of the consultation process described above. If at this point the University proceeds to implement a significant change proposal it must embark upon a further tier of consultation, this time to:

Consult with affected employees (themselves or through their representative(s)) about the impact of the implementation of the change proposal on work;

Consult with affected staff about alternative options to implementing the changes on work; and

Consult with staff about options for avoiding detrimental impacts (such as retraining, part time work etc).

20. In the result, His Honour made the following determination:

[57] The staged process of consultation required by clause 22 is outlined above. The clause effectively serves as a fetter on the University’s prerogative to make decision about aspects of its organisation that have significant consequences for its workforce until such time as it has interacted in a prescriptive manner with its employees and/or their representatives. Without doubt, the procedure to which the University agreed will slow its capacity to respond to changing circumstances and will require the allocation of more time (for consultation) in advance of decision making. But this is the implication of the Agreement, the Agreement the University made with its employees and various of their representative organisations.

[58] Further, the consultation process envisaged by the Agreement is required to commence at an embryonic point in the decision making process, that is when the very prospect of major change with major consequences appears as a possible outcome of a set of particular circumstances.

[59] Put another way, clause 22 invokes consultation when a view is formed by the University that significant change with significant consequence may be necessary. The University appears to have invoked the clause only after it had formed a view that such change was indeed necessary. That is, the University’s decision making appears to me to have traversed the critical juncture between the prospect of significant change with significant consequences and the actuality of that change.

[60] The decision making by the University therefore was not made in conformity with its Agreement.

21. His Honour declined to grant any relief which would restrain the ability of the University to allow the fixed term appointments to expire by effluxion of time. There was no appeal by the University or by the Union against the decision of Senior Deputy President Richards.

22. I respectfully agree with the remarks made by His Honour in respect of the interpretation and operation of cl 22 of the Collective Agreement. I would only add that, while the clause does introduce a lag into the University’s decision making processes in relation to those bound by the agreement, that temporal element is not fixed but flexible according to prevailing circumstances.”

[54] Whilst each case turns on its own facts and the particular wording of the relevant instrument, the principles contained in the cases over a considerable period of time make clear that the course of action determined must be mutable or the Commission will find that the opportunity to consult has not been provided.

[55] This was fortified by the relatively recent Full Federal Court decision of Keane CJ, Gray and Marshall JJ in December 2010 in QR Limited v Communications , Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. 16 In this decision the Full Court of the Federal Court heard an appeal against the decision of Logan J. He held, at first instance, that the appellant had failed to honour the consultation obligations arising from the relevant enterprise agreements in circumstances where the Queensland Government decided to privatise some parts of the appellant’s business. The Full Court found that the judge at first instance miscarried in relation to the imposition of an appropriate pecuniary penalty and replaced the penalty imposed with reduced amounts. However, they upheld the original decision in relation to consultation.

[56] Extracts from their decision from paragraphs 29 - 42 reveal a line of thinking, consistent with the approach taken in earlier decisions, that consultation is a process intended to provide the opportunity for those being consulted to influence the situation arising from the decision that has been made:

“[29] … the kernel of the primary judge’s reasoning lies in his acceptance of the Union's argument that the appellants’ decision to implement its instructions from their shareholders by making offers of transfers of employment to QR Passenger without consulting as required by cal 36.2 was a contravention of a civil remedy provision of the legislation…

[30] The arguments put on behalf of the appellants do not meet the point that, although the privatisation decision was made by the appellants’ shareholder, the exigencies of implementing that decision necessarily gave rise to matters for decision by the appellants which fell within the scope of the consultation obligation...

[32] Under clause 36.2, the employees were entitled to an opportunity to urge a different approach to the implementation of the privatisation decision. There may have been little likelihood that the QR employers would be persuaded to take a different position, given the attitude of their shareholders, but cal 36.2 is not concerned with the likelihood of success of the consultative process. It is concerned simply to ensure that consultation occurs, before a decision is made to implement a proposal...

[35] Further, the process spoken of in cal 36.2 is consultation, not bargaining or negotiation. The evident intention of cal 36.2 is to enable employees to make suggestions in relation to proposals for change to terms and conditions of employment at a point anterior to the process of negotiation by way of offer and acceptance. Clause 36.2 must necessarily be read exegetically as encompassing ‘propose changes which will, if adopted, have an impact.’

[36] It follows that the requirement to consult arose prior to the appellants’ decision to invite the acceptance by employees of changes to terms and conditions of employment, particularly in relation to the range of matters specifically identified in cal 36.2 of the agreement.

[37] The purpose of cal 36.2, evident from its text read in context with call 36.3 and 36.4 is to ensure that, before the employer seeks to negotiate to alter the terms and conditions of employment, whether by inviting voluntary acceptance of an offer or engaging in compulsory processes of dispute resolution, employees will have a real opportunity to make suggestions on the subject matter raised for their consideration so that the suggestions might be considered by the employer before the process of bargaining and offer and acceptance begin...

[41] It is apparent from these questions and answers those decisions as to the allocation of members of the workforce to QR Passenger and, consequently, the redundancy of existing jobs with the other appellants, and an increase in the size of QR Passenger's workforce, had already been made. The effects of these decisions were not merely speculative: once recipients of these letters accepted the offer of re-employment to QR Passenger, the possibility of acceding to an application for similar redeployment by non-recipients of the letter was reduced, if not practically foreclosed. It is also apparent that the decision that there would be no voluntary redundancies by way of termination of employment had already been made without any opportunity for input from employees upon this aspect of the issue of termination of employment.

[42] This aspect of the appellants’ challenge to the decision of the primary judge must fail.”

[57] The parallel is that in the matter before me a decision was made by a third party, the respondent’s client (rather than the respondent’s owner as in the QR decision) that required the respondent to decide a course of action in response. It was the decision to adopt a particular course of action that was the “proposed significant business initiative or major change” in the terms of the Agreement over which the respondent acknowledges that it was required to consult.

[58] In 2012 Roe C considered applications pursuant to s.531 of the Act (in identical terms to s.786 save the reference to dismissals in s.531 and terminations in s.786) in Construction, Forestry, Mining and Energy Union (CFMEU) v BHP Coal Pty Ltd; Communications , Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BHP Coal Pty Ltd; Automotive, Food Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers Union v BHP Coal Pty Ltd. 17 The background was that BHP Coal Pty Ltd had decided to close the Norwich Park mine and place the mine on care and maintenance. The unions complained of lack of consultation as required under the Act. Although Roe C had to consider the circumstances as they unfolded at the Norwich Park Mine against the specific requirements of s.531 of the Act, his comments on the purpose of these provisions confirm the approach the Commission has taken over the years to the purpose and practice of consultation and in particular to the importance of information sharing.

[59] I conclude that the approach taken in decisions of the Commission, its predecessors and the Federal Court on the obligation to consult puts the spotlight on the following:

● the importance of timely and sufficient information both in relation to the reason for the decision and the likely impacts thereof;

● the need to commence consultation before an irrevocable course of action has been embarked upon;

● sufficient time and appropriate arrangements, such as meetings, for a thorough exchange of information and views to take place;

● the obligation on those being consulted to engage and consider the other party’s interests;

● consultation is not to be used as a means of frustrating change;

● the modification of one party’s decision is not a necessary outcome, however, listening and considering any proposed modification is essential;

● consultation is a fetter on the unilateral right of the party with the authority to make decisions, however, ultimate decision making rests with that party. For example, in the case of an employer considering the introduction of new technology, the decision on whether to do so, what technology to install and how to go about it, including changes to employee numbers or roles is ultimately their decision.

Did Forstaff Aviation consult with the ALAEA as required by the Act and the Agreement?

[60] The ALAEA complains, in effect, that notwithstanding a number of meetings held, the information provided by Forstaff was inadequate and, as such, the consultation obligations of the Act and the Agreement were not honoured or, to put it colloquially, “genuine consultation” did not occur. In particular, the information the ALAEA regarded as essential to the conduct of genuine consultation was the number of proposed retrenchments classified by skills and date of commencement of employment. This, the ALAEA says, is because the obligation to consult arising from clause 3 of the Agreement must be read along with the provisions of Schedule B, Part C - Shortage of Work which provide, inter alia, for retrenchments to be undertaken on a “first on, last off” basis which is understood by the parties as being qualified by the right of the respondent to retain certain employees on the basis of skills required for operational reasons. A decision of Gregory C 18 in relation to this provision found that the Agreement required Forstaff apply last on first off within those classifications or skills groups no longer required. Mr Stewart’s evidence was that this information was required by the ALAEA so they could scrutinise the process and take “the opportunity to make suggestions” and “make sure that the provisions of last on, first off in the agreement were adhered to”.19

[61] The ALAEA says, in effect, that the obligation to consult arising from the Act would be satisfied if the obligation to consult arising from Clause 3 of the Agreement was met as the latter sets a higher threshold. That is, as put by Mr Victory, “any requirements of s.786 are assumed in clause 3 of the agreement.” 20

[62] Forstaff says it is unnecessary for the Commission to consider whether it has met the requirements of s.786 of the Act because the Commission is exercising its dispute resolution powers under the Agreement and, in any event, they contend they have met the requirements of s786.

[63] The ALAEA does not seek orders pursuant to s.786 of the Act and, in the light of both parties’ submissions, for the purpose of my consideration of this matter; I have decided to focus on the obligations arising from the Agreement.

[64] The ALAEA contend that a distinction must be drawn between consultation undertaken with employees and consultation undertaken with the ALAEA. Mr Victory says:

“...A distinction will be drawn in this proceeding between provision of information to employees and provision of information to the employees’ representatives. The reason that’s important is we say - first of all, the clause requires consultation with the employees’ representatives and therefore information should be provided to them. We say it’s wholly inadequate to provide information to employees on the assumption that that information will filter through to their representatives because, depending on how the information is provided, it may or may not.” 21

[65] Whilst there was no evidence of an employee or employees, pursuant to clause 3 of the Agreement, requesting that a representative be consulted, the parties have proceeded on the assumption that it was appropriate to consult with the ALAEA. It would be open to Forstaff to submit that in the absence of such a request or requests their obligation was confined to consult with employees, but they have not chosen to do so. Therefore, I will consider whether Forstaff met its obligation to consult with the ALAEA rather than its employees.

[66] I note that no complaint is before me in relation to the conduct of consultation with the AMWU, AWU and NUW or the employees they represent.

[67] In order to assess whether the interaction between Forstaff and the ALAEA amounted to consultation as required by the Agreement, it is necessary examine the sequence of events and the communications exchanged between the parties against my consideration of what is required for it to be concluded that genuine consultation has occurred.

[68] In so doing it is necessary to be clear on what Forstaff and the ALAEA were consulting about.

[69] On 8 November 2012, Forstaff received a letter from Mr Tony Lower, Head of Heavy Maintenance, Qantas Engineering, containing a revised work order (the work order). On the same day Mr Lower announced to Forstaff and Qantas employees at mass meetings that there would be approximately 250 redundancies and Mr Doug Tinley, Group Director Aviation, CML, addressed meetings of Forstaff employees about the receipt of the work order and its implications, and announced that consultation with employees and unions would commence.

[70] In the afternoon of 8 November 2012 Mr Con Raphael sent email meeting invitations to union officials inviting them to meet with Forstaff. This meeting took place on 13 November 2012 and was attended by Forstaff management and representatives of the ALAEA, AMWU, AWU and NUW. It was the first of many meetings to be conducted between the parties.

[71] On 11 November 2012, the Staff Notice dated 9 November was issued by Forstaff to employees, it is acknowledged at the suggestion of a representative of the AWU. This notice was titled ‘Qantas work order (Workforce required) with effect April 2013’. It was drawn from the work order and reproduced attachment 1 of the work order that set out trade/roles, descriptions and headcount required for each. It was posted up in the workplace but not specifically provided to officials of the ALAEA at the time, although it was a feature of the meeting conducted on 13 November 2012.

[72] Based on my experience and considering the cases I have reviewed above, I see genuine consultation commencing with communication by the party initiating consultation, about the circumstances giving rise to the need for consultation before the party initiating consultation has irrevocably committed itself to a course of action. A party to a relationship may have identified a problem that they wish to involve the other party/is to the relationship in solving; they may have identified a problem and have some suggested solutions, even preferred solutions that they wish to discuss with the other party/is. A hallmark of genuine consultation is that at the outset all parties to the consultation have an open mind about what the solution to the problem could be.

[73] Parties have an equal obligation to participate and bring energy and inquiry to bear upon the process, albeit the initiating party may have more information about the problem. To get the most out of the consultation process as much information as is available, and can be appropriately disclosed, should be shared at the earliest possible juncture. Individual privacy and commercial confidentiality is a constraint but can often be managed by practices such as aggregation of data, de-identification of data and written or oral confidentiality undertakings.

[74] The evidence discloses that by the time of the meeting on 13 November 2012 Forstaff had clearly communicated with the ALAEA about the problem. The problem was that Qantas had issued a work order the effect of which was that less work would be required to be done and as a consequence Forstaff would be remunerated for the supply of substantially fewer employees. The letter stated:

“In respect to the auctioning of this order, Qantas Engineering seeks your support to readjust staffing to the required levels in line with forecast maintenance demand, while complying with all people transitions activities. To this end, we request an interim staffing level be reached by the 31st January 2013, with the balance to be reached by 30th April 2013.” 22

[75] The letter and the work order were not provided to the ALAEA. Had this occurred, in particular, had Attachment 3 to the work order which contained reference to licence requirements, been disclosed, I believe that a better foundation for genuine consultation would have been established. However, the fact of the work order and that it was the reason for and the subject of the meeting was clear to the ALAEA at this point. The Staff Notice dated 9 November 2012 containing an extract from the work order had been released by the time of the meeting and was referred to in the meeting. I do not accept that because the letter and the work order were not directly provided to the ALAEA that consultation with the ALAEA had not commenced. I believe that in the circumstances of these parties, where delegates and Councillors were active in the process of site meetings and consultation meetings, material would have come into their possession and, in any event, it was the subject of discussion in the meeting with the ALAEA.

[76] The evidence discloses that Forstaff proposed to address the problem of reduced labour requirements by retrenching employees on the basis of, firstly, calling for expressions of interest for voluntary redundancy (EOI process), secondly, selecting employees for voluntary redundancy and, lastly, initiating compulsory redundancies with no retrenchments prior to Christmas and all retrenchments to have been undertaken by 30 April 2013.

[77] Mr Stewart gave evidence that “at the meeting Forstaff did not inform the representatives present of the total number of employees that would be made redundant, or the classifications and number in each classification that would be made redundant”. 23 However, the total number of employees considered excess by 30 April 2013, as at the date of the announcement, was already known and Mr Stewart conceded in cross examination that Forstaff had advised verbally the requirements of the work order by classification.

[78] The evidence discloses that in the meeting the ALAEA raised concerns about the use of a skills matrix to select employees for retrenchment, the stress upon employees arising out of the situation, the requirement for 767 and 737 aircraft Licenced Aircraft Maintenance Engineers (LAMEs) and the dates for the EOI process.

[79] It is the evidence of Mr Rafael that in response to these concerns Forstaff management stated their commitment to the use of the skills matrix for employees with the same start date; indicated their preference to retain 737 LAMEs with the qualification that this would be part of ongoing discussions with Qantas, agreed to initiate an inquiry into what was available to address stress in the workplace and said that dates for the EOI process would be communicated at the next meeting.

[80] Following the meeting, and dated the same day, a letter seeking to summarise the outcome of the meeting was sent to the ALAEA and a staff update was issued to employees. The content of these communications sheds light on the subject matter of the meeting and the stage of consultation the parties had reached by 13 November 2012, three days after the announcement was made. For that reason they are reproduced in full:

“13 November, 2012

Brad Stewart

National Union Organiser

Australian Licenced Aircraft Engineers Association

Level 3, 365 Queen Street (ACTU House)

Melbourne VIC 3000

Email: [email protected]

Dear Brad

This letter is to summarise the outcome of our meeting Tuesday, 13th November 2012 following the announcement November 8 2012, that Qantas had finalised the review of Avalon’s proposed maintenance and staffing requirements at Avalon and identified an excess capacity of 247 employees (including Supply Chain) in the workforce, with effect April 2013.

Forstaff is continuing our consultations with Qantas to confirm the essential skills and license coverage, required at Avalon and are committed to continue to understand the potential for opportunities for alternative employment for potentially affected employees.

You are aware that the matter of Last On / First Off is with FWA pending a decision. Given this announcement, the company has sought the support of the Commissioner to have a decision made as soon as possible.

As was made clear at the meetings of last week and Tuesday, NO redundancies will occur prior to the New Year.

Forstaff will provide all necessary employee support programs including career transition and financial planning services and has engaged with the relevant government departments who will be represented at seminars to be convened at the appropriate time.

A further meeting has been agreed to explore specific issues associated with the process, this meeting is scheduled for with AWU/AMWU/ALAEA Wednesday 21 November @2pm and NUW on Wednesday, 21 November @ 09:00.

● Updated Headcount reflecting skill and licence coverage following consultation with Qantas
● Familiarising union reps with selection matrix
● Update re status availability of government funding
● Current and future state staffing levels / trade classification
● Process going forward commencing with timeframe of EOI process
● Subject to final headcount / skill mix, a decision by Company to provide entitlement and redundancy calculations to all affected employees
● Consideration for joint Company / Union communication prepared by the company and circulated to each union for review and comment prior to distribution
● Request from the Unions for mass meetings with employees on Thursday, 22 November, 2012 at 11 - 12pm and 3:15 - 4:15pm respectively

For

[Signed]

Doug Tinley

EGM - Workforce Planning

CHANDLER MACLEOD.” 24

“Staff Update

Dear Colleague

Last Thursday November 8, 2011 [sic] Qantas Engineering advised Forstaff that it finalised its review of Avalon’s proposed maintenance and staffing requirements. Tony Lower, Manager Heavy Maintenance; briefed both shifts at Avalon about the outcome of the review which identified an excess capacity of 247 employees (including Supply Chain) in the workforce, with effect April 2013.

A copy of the revised staffing requirement from April 2013 was provided as agreed to all staff on Friday, 11th November 2012.

FSA is continuing to consult with Qantas to confirm the essential skills and license coverage, required at Avalon. We are also committed to continue to understand the potential for opportunities for alternative employment for potentially affected employees.

More information will follow once the details around the headcount including required licences and skills.

Consistent with the provisions of the Jobs Australia Avalon Site Agreement, the process of notifying and consulting with relevant unions has commenced with a meeting of all unions on Tuesday, 13 November to discuss the implementation process.

The matter of Last On / First Off is with FWA pending a decision. Given this announcement, the company has sought the support of the Commissioner to have a decision made as soon as possible. Once the outcome of the LOFO decision is made, the process will be communicated to staff via Toolbox Briefings and staff notices which will include EOI for Voluntary Redundancy and information regarding opportunities for redeployment.

As was made clear at the meetings of last week NO redundancies will occur prior to the New Year.

Forstaff will provide all necessary employee assistance support programs including career transition and financial planning services and has engaged with the relevant government departments who will be represented at seminars to be convened at the appropriate time.

We will provide further details as they come to hand.

Con Rafael

Human Resources Manager

13/11/2012” 25

[81] I conclude from the evidence given that all parties approached the meeting of 13 November 2012 with the belief that retrenchments were the most likely result of the Qantas decision to reduce their labour requirement as set out in the work order. That was certainly Forstaff’s intention and there is no evidence that the ALAEA contested that conclusion, rather, that they sought to influence the way that it occurred. There is no evidence that either Forstaff or the ALAEA turned their minds as to how Forstaff could maintain their existing complement of employees by taking other courses of action such as seeking to supply other airlines with labour for similar work, changing the nature of their business and utilising the skill base to develop new revenue lines or otherwise protecting the employment of licences aircraft engineers by employing the surplus employees in a new vehicle, approaching the Federal Government for structural adjustment support as in the automotive industry and so on. It is apparent to me that since Forstaff’s sole purpose was supplying Qantas with labour, when that need diminished the parties expected employment reduction.

[82] Clause 3 of the Agreement says:

“3. CONSULTATIVE ARRANGEMENTS

[83] The adverse effects in this case are adverse effects of the employment reduction program. Now it might be said that this is somewhat circular. Measures to avert or mitigate the adverse effects of the employment reduction program could include creative ways of avoiding it altogether. However, there is no evidence before me that this was the thinking of the parties as they approached consultation. The ALAEA complains of lack of consultation on the narrow point that until they had possession of the number of proposed retrenchments, classified by skills and date of commencement of employment, they could not put forward possible measures to avert or mitigate the adverse effects of the employment reduction program.

[84] Therefore, it is important to establish, on the balance of probabilities, what information the ALAEA did have and when it came into their possession. Only then can I consider whether the information was sufficient or sufficiently timely to underpin genuine consultation about the employment reduction program.

[85] The next meeting of the parties following the meeting of 13 November was held on 20 or 21 November 2012. There was uncertainty about which date it had been held on, but it is not material.

[86] It was Mr Rafael’s evidence that a document was projected onto a whiteboard during the meeting containing information about retrenchments in each trade/role with columns indicating the current complement of employees per category of employee requirement as at April 2013 and the consequent reduction. Mr Stewart’s evidence was that he could not recall this projection although he had been verbally advised of the requirements of the work order by classification at an earlier date. He also recalled that Forstaff indicated at the meeting that they would be seeking further clarification from Qantas about particular classifications of employees.

[87] Based on the evidence of Mr Rafael and Mr Stewart I conclude that it is more likely than not that the document was projected onto the whiteboard and its contents were made known to the ALAEA. Mr Stewart could not recall. Mr Raphael was adamant he had done this and produced the document it was said had been projected onto the whiteboard. This is not something that a person responsible for conveying information would be likely to forget and I regard Mr Rafael as a credible witness. However, the document that was projected onto the whiteboard was not provided to the ALAEA and this is regrettable. It is not consistent with genuine consultation to make the provision of information so awkward. However, the ALAEA were free to take notes in the meeting and the period of time of the projection would have allowed, in my view, for all the information relevant to their members to be noted. It was Mr Rafael’s evidence that notes were being taken and I regard that as highly likely.

[88] Following that meeting on 28 November 2012, a communication jointly signed by representatives of CML, AWU and AMWU was provided to employees. ALAEA had declined to sign it.

[89] The content of this communication sheds light on the subject matter of the meeting and the stage of consultation the parties had reached by 20 or 21 November 2012 and for that reason it is reproduced in full:

“28 November 2012

Colleagues

This communication follows a meeting on Wednesday, 21 November 2012 with Forstaff Aviation management, organisers and representatives of the AWU, AMWU and ALAEA, which clarified and agreed to the following process to manage the redundancy of the 236 positions with effect 30 April 2013.

An Expression of Interest (EOI) for information will be posted in the week commencing 3 December 2012 with a closing date 24 January 2013 allowing for an extended period for employees to request information. Calculations will be provided to employees who express interest throughout this period as and when received by Forstaff HR.

To provide support and assistance to employees, information sessions will be held to discuss ‘coping with change’ will occur in the week commencing 10 December 2012 facilitated by Forstaff and a change management consultant.

Career Transition & Information seminars, 2 seminars per day, will be held over three days on the 22, 23 and 24 January 2013. These seminars will only be open to those employees who submit an expression of interest (EOI). The seminars will include representatives from Government, Industry and support networks including financial advisors and STA superannuation.

Applications for Voluntary Redundancy will open 25 January 2013 and close on the 22 February 2013. Throughout this period employees are encouraged to access employee assistance and support via the EAP provider details of which are being communicated via toolbox briefings and notice boards. Employees accessing EAP support services are reassured of the strict privacy, confidentiality and sensitivity of the information shared between the person and the EAP counsellor.

Employees are also encouraged to make an appointment with Forstaff HR (Jessica Troeth, Lisa Loney) to discuss any questions or concerns.

Consideration will be given for employees seeking early departure due to ‘special circumstances’ with a release date subject to discussion. Employees should make an appointment with Forstaff HR to discuss their special circumstances.

Forstaff Aviation continues to have further discussions with Qantas to clarify and understand the status of EPC and Parts Chasers and the inclusion of Apprentices in the AME - Mechanical numbers and will report the outcome and progress of these discussions at a meeting with the Unions on Wednesday, 5 December 2012.” 26

[90] Forstaff agreed to engage with Qantas in relation to specific categories of employees whose situation required clarification – those holding Engineering Production Certificate IV’s, Parts Chasers and mechanical apprentices.

[91] It is common for information requests to emerge during the course of consultation as the process itself may give rise to questions that were not apparent at the outset. Often information must be sourced from outside the closed circle of the parties engaged in consultation and this is an example of such a situation occurring. This is often experienced by parties when the impetus for change is external to the relationship. Where relationships are adversarial, as in this case, lack of information can often be the source of distrust between the parties. The preferred approach is for the parties to jointly seek and receive the information required in order that the credibility of the information can be established. In this case, Forstaff was left to engage with Qantas bilaterally and the ALAEA had to rely on the information being conveyed from Forstaff to them. Given the lack of trust between Forstaff and the ALAEA it was evident to me that this was not optimum.

[92] Notwithstanding the incomplete picture available, I believe that at this point the ALAEA had sufficient information to begin making suggestions as to how to avert or mitigate the adverse effects of the employment reduction program. Indeed, on 13 November 2013 a suggestion had been made by an ALAEA representative regarding the impact of stress on employees, which had given rise to Coping with Change career transition workshops being offered by Forstaff. There was nothing stopping the ALAEA making other suggestions, including suggestions based on the knowledge they were in possession of about the numbers of different classifications of employees to be made redundant. The absence of a list of employees to be retrenched by start date meant that they could not “scrutinise” the process of selection, however, that would have been premature because as at the date of the meeting the EOI process had not opened so the involuntary retrenchment process had not commenced.

[93] On 4 December 2013, a workshop was conducted by Forstaff on the skills matrix which they intended to utilise to select an employee for retrenchment where employees had the same start date. The ALAEA opposed the use of this skills matrix. The ALAEA was invited to attend but did not attend this workshop. In the event, Forstaff did not apply the skills matrix to any LAMEs as there were no LAMEs in the employment reduction program with the same start date. Towards the end of the process Forstaff offered to take up the ALAEA suggestion of random selection in lieu of use of the skills matrix but in the event this was not required.

[94] On 5 and 19 December 2012 further consultation meetings were held between Forstaff and the unions. It was Mr Rafael’s evidence that the skills matrix was the subject of discussion on 5 December. A further meeting was held on 13 December 2012 on the skills matrix and further briefings were planned, to which the ALAEA was invited, for 3 and 7 January 2013. The meeting on 3 January was held but the meeting on 7 January was abandoned.

[95] On 9 January 2013, licence requirements contained in the work order were communicated to employees in a staff notice. The Staff Notice was not provided directly to the ALAEA. This was regrettable but I do not regard this as fatal to the consultation process. Obviously, it would have been more respectful of the role of the ALAEA officials to do so and I would urge this approach in the future. However, it is implausible that the ALAEA did not obtain the Staff Notice as soon as it was issued. Had the workplace been one where there were very few union members and contact between union officials and members limited I might come to a different conclusion, but this was not the case at Forstaff.

[96] Mr Rafael gave evidence that the reason that the work order, and, in particular, Attachment 3 to the work order dealing with licence requirements, did not go into the first staff notice was because Forstaff did not want to issue information that was a work in progress and there were issues under discussion with Qantas that in effect meant that matters were not settled.

[97] Consultation in circumstances of change imposed from a source external to the relationship often takes place in an uncertain context. The higher the levels of trust between parties the more likely they are to be completely frank about what is known and what is not known. When trust is low parties often retreat to disclosure of certainties only. I conclude that this was the situation between Forstaff and the ALAEA. The question remains was the disclosure sufficient for genuine consultation about to take place about measures to avert or mitigate the adverse effects of the employment reduction program?

[98] Mr Rafael gave evidence that he did not specifically send notices such as the Staff Notice of 9 January 2013 to officials of the ALAEA because they were already “ahead of the curve” 27 and, in effect, he assumed that delegates and Councillors who received the communication from staff notices and toolbox talks would advise the officials about it.

[99] In my opinion by 9 January 2013 the ALAEA were well informed of the aggregate number of retrenchments to be made by 30 April and the classification and licence requirements. It would have been preferable for the ALAEA official to be sent the material management was making available to employees. Mr Rafael gave evidence that he respected the status of ALAEA councillors 28, however, he understood that they were not “at the level of Brad (Stewart, National Union Organiser) and Steve (Purvinas, ALAEA Federal Secretary)”. Ideally, the parties would have had a plan for how to communicate with each other during the consultation that reflected the different groups being consulted and the different levels within the union, however, there is no evidence that the ALAEA asked Forstaff to send them communications made to employees and I think it is reasonable to conclude that officials of the ALAEA were made aware of such communications.

[100] On 17 January 2013, Forstaff informed the ALAEA, amongst others, that circumstances had arisen requiring an urgent meeting. These circumstances were the Qantas advice to Forstaff regarding the interim checkpoint. Mr Rafael gave evidence that between 11 January 2013 and this meeting Forstaff decided to commence retrenchments on 4 February. It is apparent to me that Forstaff’s presentation of the reason for the acceleration of the employment reduction timetable was incomplete. They had never revealed the existence of the January 31 interim checkpoint (because they did not intend to implement it), yet when Qantas insisted upon the checkpoint and they were required to renegotiate with Qantas, they accelerated the timetable indicating it was at Qantas’s behest. Whilst strictly speaking true, the omission of the full story, later revealed, added to the trust deficit between the parties. Nevertheless, Forstaff did inform the ALAEA in a reasonably timely way of the acceleration and, contrary to the ALAEA’s submissions, I do not think that it can be said that because the old interim checkpoint was not revealed there was no genuine consultation.

[101] Uncertainties remained but the information about the aggregate numbers of retrenchments under the new timetable was communicated to the unions at a consultation meeting on 23 January 2013. 29 On this occasion Mr Steve Purvinas attended a consultation meeting for the first time and he asked Forstaff a series of questions. The evidence is that at a point in the meeting Mr Melhuish asked Mr Purvinis to put his questions in writing, which he did in a letter dated 24 January 2013 containing 139 questions. Forstaff provided a response to the ALAEA’s letter on 11 February 2013. It is submitted, in effect, that amongst other information, certain information pertaining to the safety of the employees remaining after the employment reduction program was completed was sought. The impact on the remaining employees is certainly a valid topic for consultation; however, there is no evidence of this theme being developed by the ALAEA at further meetings.

[102] 30 January 2013 was the first occasion the ALAEA learned there would be 30 retrenchments each week. The ALAEA was invited by Forstaff to comment on licensing coverage for redundancy purposes and did so. At this point the ALAEA should have been given a de-identified list of employees in order of start date indicating which employees were to be retrenched in order of effective date of termination. This would have allowed the ALAEA to consider the alignment between the process being adopted and the provisions of the agreement and make any suggestions about the process.

[103] In any future employment reduction program such information should be provided. Ideally, the process by which employees were selected for retrenchment would have been agreed between the parties, however, it was not. This information would have fully informed them of the situation, including the likelihood that the skills matrix would not need to be used. However, I do not conclude that the absence of this information was fatal to the conduct of genuine consultation about the overall employment reduction program.

[104] It was also submitted that the information should have contained employees’ names so that the ALAEA could verify each employee’s classification. I do not agree. Not all employees whom the ALAEA had coverage of were members and individual’s privacy should not be compromised without permission. Individuals were able to complain about their classifications and indeed one employee did so.

[105] By this point the ALAEA disputed the ongoing implementation of the employment reduction program as a whole and on 4 February 2013 lodged a dispute notification before the Commission. Forstaff responded by postponing the commencement of the retrenchments scheduled for 4 February and only resumed the implementation of the plan outlined to the unions on 30 January 2013 on 14 February 2013.

[106] Further consultation meetings were held on 6, 14, 20, 27 February and 6 and 13 March 2013, a conciliation conference having been held at the Commission on 13 February and involuntary retrenchments having commenced on 14 February 2013. On 27 February a revised work order was received by Forstaff from Qantas reflecting the new interim checkpoint and detailing licence requirements and a summary of the licence requirements which was provided to the ALAEA on 28 February 2013.

Conclusion

[107] The picture that emerges from this review is one of Forstaff responding to the revised Qantas work order with an employment reduction program and implementing that program within a timeframe determined by them, whilst at the same time undertaking a parallel process which provided the opportunity to others, including the ALAEA, to contest and modify the program. Some proposed modifications were accepted by Forstaff. They were modest. Examples include the implementation of early release of those volunteering for redundancy, the retention of apprentices, the Coping with Change career transition workshops, preference to LAMEs with two engine licences, the use of random selection in lieu of the skills matrix if needed and the, albeit temporary, delay in the commencement of retrenchments.

[108] The ALAEA’s request for information was iteratively met, and although not as completely as I consider appropriate, just enough information was available at the relevant time to allow suggestions to modify the proposed approach to be made. Unfortunately, the hostility between the parties and the single track (retrenchments) that the consultations proceeded down meant that the opportunity for an outcome much different to that which occurred was limited. However, there is no basis for me to conclude overall that genuine consultation concerning the employment reduction program was prevented by the conduct of Forstaff and, in particular, by the inadequacy of the information.

[109] On 24 June 2013, following the hearing in this matter, the Federal Circuit Court decided a case in a circumstance with parallels to this matter - the introduction by Qantas of the Maintenance on Demand (MoD) system of aircraft line maintenance for B738 and A330 aircraft resulting in less work required of Licenced Aircraft Maintenance Engineers (LAMEs). I have not had the benefit of the parties’ submissions concerning the relevance of this case to this matter; however, it would be remiss of me not to consider whether the decision changes the conclusions I have come to.

[110] In Australian Licenced Aircraft Engineers Association v Qantas Airways Limited (the Qantas case) 30 Judge Raphael considered, inter alia, whether or not Qantas contravened clause 47.2 of the Licenced Aircraft Engineers (Qantas Airways Limited) Workplace Determination 2012 (the Workplace Determination) when it allegedly declined to provide relevant information requested by the ALAEA and failed to genuinely consult with the applicant in relation to the implementation of the MoD system.

[111] This provision was similar, but not identical, to the relevant provision of the Agreement in this matter. Judge Raphael was required to consider the factual circumstances of that case against his interpretation of the requirements of clause 47.2 of the Workplace Determination. The factual circumstances and the relevant provision are different to the matter before me; however, the parallels are sufficient to warrant its consideration.

[112] At paragraph 42 he says:

“43. It is, regrettably, not entirely clear to me the extent to which the applicant is making a claim that in order to comply with the requirements of clause 47.2 any consultation held with Qantas would have to provide the ALAEA with an opportunity to persuade the company that it should not go ahead with the introduction of MoD. To the extent that they are seeking to make this argument it is one that the court must reject based upon the very clear wording of the agreement. This is not the wording that appears in QR, it is unique to the Qantas agreement and it makes it quite clear that no consultation commences until a decision has been made. The consultation that is envisaged by the agreement is on the matters set out in clause 47.2.1 and is essentially consultation in order to avert or mitigate the prejudicial effects of the decision that had already been made. On these subjects the views expressed by Logan J in QR are relevant and apt and it is therefore necessary to turn to the evidence relating to the consultation to assess whether or not it did take place and was genuine consultation.”

[113] Judge Raphael is confirming that the trigger for consultation was the decision to introduce MoD and the purpose of consultation in the matter before him was “in order to avert or mitigate the prejudicial effects of the decision that had already been made”. In this case Qantas’s decision meant that fewer employees were required by them. In the matter before me Qantas’s decision to reduce the services it required from Forstaff meant that fewer employees were required by Forstaff.

[114] He confirms this at paragraph 58:

“58. It is the court’s view that the requirement for consultation under the WD did not extend to consultation about the decision to introduce MoD. This is clear on the wording of Clause 47. However, the court is of the view that the implementation of MoD about which consultation is required includes any decision relating to the effects of that implementation such as redundancies.....”

[115] At paragraph 64 he says:

“64. The applicant now argues that Qantas failed to consult in relation to the effect of the introduction of MoD on employees and in particular to the 30 redundancies; an obligation the existence of which Qantas acknowledges. However, the evidence before me suggests that Qantas had decided that the introduction of MoD would result in the redundancy of 30 employees and that this was not open to genuine consultation.”

[116] At paragraph 77 he says:

“77. However, it is of concern that the resort to redundancies does not appear to have been open to consultation. Indeed, the evidence suggests that the number of redundancies itself was fixed from the time that Qantas made the decision to implement MoD. The court must therefore consider whether Qantas failed to consult in regards to this effect of the implementation of MoD in that respect.”

[117] And at paragraphs 89 and 90:

“89. I am satisfied, on the strength of this evidence, that despite the apparent ambiguities in communications between Qantas and the applicant – communications which were vetted by IR and legal teams – the redundancies were a foregone conclusion, regardless of the consultation process that would occur. I believe that Qantas approached the consultation in regards to redundancies as a means to assess who would be willing to make themselves voluntarily redundant and to inform LAMEs of their rights and opportunities in this respect. Consequently, even though the ALAEA approached the consultations in a negative manner, due to their belief that the decision to implement MoD had itself been incorrectly made, I am satisfied that Clause 47.2.1 was breached in that Qantas did not genuinely consult with the applicant in regards to the decision to make 30 LAMEs redundant, that being an effect of the introduction of MoD on employees.

90. Before turning to the allegations of individual failure to provide relevant information required by Cl 47.2.3 of the WD the court should point out the restricted nature of the finding made above. It relates to a failure to properly consult over one (albeit very serious) effect of the 'changes', the loss of 30 LAME positions. It is not a finding that there was a general failure to consult. The court's view of the evidence is that Qantas did make a genuine effort to consult about other matters including, importantly, methods of mitigating the effect of the redundancies by the EOI proposals. Difficulties arose because of the view taken by the ALAEA to those consultations. The union thought that it had the right to approve the introduction of MoD through use of the Qantas Change Management Procedures. It thought it had the right to preliminary discussions before the decision to introduce MoD was made. These views pervaded the negotiations and led to the 23 March 2013 email requesting that all further negotiations be in writing. The parties were moving upon parallel but different tracks. Qantas was committed to consultation through the WD procedures, the union through Qantas’ internal change management procedures. This resulted in an effective breakdown in the consultation and industrial action. But a breakdown does not signify that no consultation took place or that Qantas was not committed to genuine consultation in those areas where it believed it was required. The court is of the view that Qantas was so committed and did to the extent made possible by the attitude of the union carry out such consultation in an appropriate manner. If the consultation was not completed the blame must lie with the ALAEA.”

[118] In this matter the evidence is that the inevitability of some employment reduction in response to the Qantas work order was not challenged by the ALAEA. It was open to the ALAEA to say to Forstaff at the meeting of 13 November 2012 “we want to discuss whether it is necessary to reduce the Forstaff workforce at all or by the numbers identified in the Qantas work order; can’t Forstaff take on work from other carriers or start another business that requires the skills of our members etc?” There is no evidence that Forstaff would not entertain such a discussion, simply that no such discussion was initiated by the ALAEA. Rather, and one might say, pragmatically, the demand was for certainty about the number of redundancies proposed and precise information about the composition of the redundancies. This is because unlike Qantas, with its diverse operations, Forstaff conducts a ‘single-line’ business. It exists to provide labour to Qantas. Judge Raphael’s conclusion that Qantas should have provided the opportunity to the ALAEA to consult over whether the 30 redundancies of LAME positions should occur at all has more force in that circumstance. I am not exercising judicial power as he was and in arbitrating to resolve this dispute I do not have the same role in coming to a conclusion about whether or not Forstaff is in breach of the Agreement. I do not believe that Forstaff prevented the discussion of alternatives to the employment reduction program. Accordingly Judge Raphael’s decision in this respect does not cause me to revise my conclusion.

[119] Judge Raphael also considered whether the refusal by Qantas to provide some information requested by the ALAEA meant that Qantas had breached the relevant provision of the Workplace Determination. This has a clear parallel with the matter before me because the ALAEA contends that the failure to consult was caused by the failure to provide certain information or certain information in a timely manner. In the Qantas case the ALAEA identified 17 particular pieces or categories of information that it submitted were requested but not forthcoming. Judge Raphael addressed each one individually and concluded that only one, failure to provide details of leave liability in each Line Maintenance cost centre, grounded a conclusion that Qantas was in breach of the provision.

[120] In this matter the key information failure complained about is the availability and timeliness of the availability of:

(a) the number of redundancies,

(b) the classifications of the redundant roles,

(d) the names and start dates of employees occupying redundant roles.

[121] The information in (a) was available on 8 November 2012 and although the order of magnitude changed over the period the numbers reduced and Forstaff kept the ALAEA up to date in a timely manner.

[122] The information in (b) was probably available to the ALAEA from 11 November 2012 and almost certainly from 20 or 21 November 2012.

[123] The information in (c) was probably available to the ALAEA from 9 January 2013 and almost certainly from30 January 2013.

[124] The information in (d) was never made available to the ALAEA.

[125] I believe that just enough information was available at the relevant time to allow suggestions to be made to modify the proposed approach and accordingly this does not contribute to a conclusion that Forstaff was in breach of the relevant provision.

[126] The letter of 24 January from Mr Purvinas to Mr Melhuish contained a plethora of questions - there were 139 specific data references. Some were a statement of information sought and already provided but the majority were requests for new data. As indicated above this letter was answered by Mr Melhuish on 11 February and his response covers six pages. The applicant complains about its timeliness in light of the acceleration in the employment reduction program with redundancies commencing on 14 February. The respondent says this is in part because it was only written on 24 January, this period spanned the Australia Day weekend and it took time to gather responses to some of the information sought.

[127] Whilst I conclude that not all questions were answered, it was not apparent to me from the evidence that the failure to do so prevented consultation about the employment reduction program. As I said above, I am not exercising judicial power. In arbitrating to resolve this dispute I do not see the need, as Judge Raphael did, to forensically review each request for information and come to a conclusion as to whether it was or wasn’t provided, should or shouldn’t have been provided and whether that circumstance gave rise to a failure to consult. I have tried to get to the heart of the matter in a practical way. I think my role is to come to a view about the appropriateness or otherwise of the orders sought and to consider what else I would propose to resolve the dispute.

Orders sought

[128] I consider that Forstaff’s actions subsequent to 8 November 2012 substantially met the minimum standards required of clause 3 - Consultative Arrangements of the Agreement. However I regard the quality of the consultation undertaken as less than ideal due to inadequacies in information sharing by Forstaff and the passive resistance of the ALAEA.

[129] Forstaff proposed a major change with a demonstrable impact on employees. This was the reduction in labour demand by Qantas. There is no contest that an obligation to consult as early as practicable arose from the Qantas work order on 8 November 2012 and the program of consultation meetings and communications that commenced on 13 November 2012 was established as early as practicable.

[130] Clause 3.2 required Forstaff to consult on the introduction of the major change and measures to avert or mitigate the adverse effects of the change. The primary adverse effect of the change was the proposed employment reduction. Other adverse effects may have arisen; however, the evidence does not disclose any reference to any other material adverse effect, save an oblique reference to safety concerns that was never fully articulated.

[131] Forstaff was required to give consideration to matters raised by, amongst others, the ALAEA and the evidence discloses a range of matters that were raised, considered and in some cases accepted with resulting refinements to the employment reduction program. I conclude that Forstaff complied with this requirement.

[132] There were shortcomings in the provision of information by Forstaff to the ALAEA but they were not so as to totally undermine the capacity of the ALAEA to make suggestions to Forstaff, although I believe that they did compromise the quality of the consultation undertaken.

[133] Accordingly I decline to make the first order sought by the ALAEA.

[134] The second order seeks the reinstatement of all employees made compulsorily redundant since 11 February 2013. The evidence is that by around 6 May 2013 230 employees had been retrenched. Leaving aside any jurisdictional consideration if I were to reinstate some of these employees, it could only be to allow for the process of consultation to take place that the ALAEA says ought to have occurred. I have already concluded that Forstaff met the minimum standards required of clause 3 - Consultative Arrangements of the Agreement. I have also concluded that shortcomings in the provision of information by Forstaff compromised the quality of consultation. However I cannot conclude that the provision of the information sought but not supplied concerning classifications and start dates would make a material difference to the number of retrenchments or the individuals chosen because the choice was based on the formula of first on, last off that is supported by the ALAEA. Consequently, I see no utility in reinstating the retrenched employees. Further, reinstating employees in circumstances such as this could give rise to major disruption to the business of Forstaff, undermine the security of the remaining employees and give rise to personal hardship in circumstances where employees have been paid redundancy pay and possibly already applied it to their personal commitments. Therefore, I decline to make the second order sought by the ALAEA.

[135] I will deal with the third and fourth orders sought together as they both relate to the provision of information. I decline to make the orders as sought. The fourth order sought is so general as to be unable to be implemented. The third order deals with three sets of information. The first is a request for information that has been largely met by Forstaff in its reply on 11 February 2013 to the letter from the ALAEA of 24 January 2013. I will not order Forstaff to prepare another reply to this letter. The second is information sought in meetings but not supplied. I will not order this as it is framed in terms that are not specific enough to be acted upon. The third is the start dates and classifications of all employees. I will order that Forstaff supply the ALAEA with a list of employees for whom the union has coverage (de-identified as to individual names) retrenched in this employment reduction program categorised by classification and start date and a list of remaining employees for whom the union has coverage (de-identified as to individual names) categorised by classification and start date. This will allow the ALAEA to satisfy itself regarding compliance with Schedule B - Part C of the Agreement.

[136] The fifth and last order seeks to prevent Forstaff from making any major changes until it has properly consulted with the ALAEA. The delay in the hearing of this matter, through no fault of the parties, means that this order has been overtaken by events and as I have indicated I am not prepared to turn the clock back with all the attendant disruption to Forstaff and its workforce that this would imply. An order of this nature with prospective operation would be of no utility since the respondent accepts its obligation to consult in regard to major change but disagrees with the applicant concerning the meaning of consultation.

[137] Hopefully this decision will go some way to clarifying for the parties what their obligations mean in practice. I hope it is not lost on both parties that the Commission expects the employer’s obligation to provide adequate information and engage early and with an open mind to be met with the employees and their representatives’ reciprocal obligation to engage constructively.

[138] I recommend that Forstaff and the ALAEA meet and seek to reach agreement on a framework and a set of principles that they will use to genuinely consult about the job security, workloads and workplace health and safety of remaining employees. This would also provide an opportunity to consider the upshot of Gregory C’s decision in December 2012 over the process for selecting employees for retrenchment should this be necessary in the future. This was a recommendation from Gregory C and would appear to be unfinished business. The Commission is available to assist the parties at their request.

[139] An order will issue to reflect this decision.

DEPUTY PRESIDENT

Appearances:

D Victory, Maurice Blackburn Lawyers, for The Australian Licenced Aircraft Engineers Association

J Mansfield, Ashurst - Australia, for Forstaff Avalon Pty Ltd T/A Forstaff Aviation

Hearing details:

2013.

Melbourne:

20 May.

Final written submissions:

25 June 2013

1 C2013/2931

2 C2013/3144

3 Transcript PN1010

4 122 CAR 339

5 Print F6230

6 Ibid., p.21

7 Ibid., p.34

8 Ibid., p.35

9 Print F7262, p.16

10 Ibid.

11 (1998) 88 IR 202 at 214

12 PR911257

13 PR912122

14 [2007] AIRCFB 374

15 [2008] FCA 481

16 [2010] FCAFC 150

17 [2012] FWA 3945

18 [2012] FWA 10265

19 Transcript PN285

20 Ibid., PN171

21 Ibid., PN189

22 Exhibit R1, Statement of Con Rafael, CR-1

23 Transcript, PN400

24 Exhibit R1, Statement of Con Rafael, CR-4

25 Ibid., CR-5

26 Ibid., CR-7

27 Transcript, PN1016

28 Ibid., PN1015

29 Ibid., PN955

30 [2013] FCCA 592

Printed by authority of the Commonwealth Government Printer

[2013] FWC 4639

24 JULY 2013