The Australian Municipal, Administrative and Clerical Services Union formerly known as the Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union v Qantas Airways Ltd

[1993] FCA 514

THE AUSTRALIAN MUNICIPAL, ADMINISTRATIVE AND CLERICAL SERVICES UNION formerly
known as THE AUSTRALIAN MUNICIPAL, TRANSPORT, ENERGY, WATER, PORTS, COMMUNITY
AND INFORMATION SERVICES UNION v. QANTAS AIRWAYS LIMITED; VIVA HOLIDAYS]; Q H
TOURS LIMITED; AUSTRALIA/ASIA AIRLINES LTD; QANTAS SUPERANNUATION LTD; QANTAS
JETABOUT HOLIDAYS and QANTAS FLIGHT CATERING LTD
No. NI4 of 1993
FED No. 514
Number of pages - 5
Industrial Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
INDUSTRIAL DIVISION
Wilcox J(1)

CATCHWORDS

Industrial Law - Interpretation of industrial award - Provision relating to preference to unionists - Whether applicable to a situation of amalgamation of two companies with consequential appointments of employees in acquired company to positions formerly occupied by respondents' employees - Date at which provision to operate - Meaning of "employment" - Meaning of "work".

Industrial Relations Act 1988, s.51

HEARING

SYDNEY, 21 July 1993

#DATE 29:7:1993

Counsel for the Applicant: J Pearce

Solicitors for the Applicant: Geoffrey Edwards and Co

Counsel for the First to Seventh Respondents: C N Jessup, QC and

P M Kite

Solicitors for the First to Seventh Respondents: Blake Dawson Waldron

ORDER

THE COURT ORDERS THAT:

The Application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

WILCOX J This is an application pursuant to s.51 of the Industrial Relations Act 1988 whereby the applicant, The Australian Municipal, Administrative and Clerical Services Union, seeks an interpretation of cl.45(b) of the Airlines Officers (Qantas Airways Limited) Award 1992.

1. The applicant has only recently come into existence. It was formed out of an amalgamation of two unions, the Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union (commonly known as "the Australian Services Union" or "ASU") and the Federated Clerks Union of Australia ("FCU"). The proceeding was instituted by the ASU, before the amalgamation occurred. Shortly thereafter, the FCU applied for leave to intervene. I granted leave. Between that date and the hearing, the amalgamation occurred, with the result that counsel appeared on behalf of the amalgamated organisation. He put submissions on behalf of that body. But he drew my attention to some Points of Contention filed, before its demise as a separate entity, by the FCU. Counsel adopted the contents of this document by way of an alternative to his principal argument. I will refer to it, for convenience, as the FCU submission.

2. The respondents to the application are Qantas Airways Limited and six associated companies. There is no need to distinguish between the respondents. I will refer to them collectively as "Qantas".

3. Clause 45(b) relates to preference of employment. The relevant preference is to be given to persons who are "members of either of the unions, or persons eligible to become members of the unions and for whom either of the unions declares to act as an agent". Clause 6 of the Award defines the word "unions" as meaning the ASU and FCU; they, of course, being separate unions when the Award was made. Apparently, each had members employed by Qantas. For convenience, I will refer to those to whom preference is to be given as "union members"; though this is not entirely correct.

4. Clause 45(a) deals with the giving of preference to union members in respect of engagement by Qantas. Clause 45(b) deals with retrenchment. The sub-clause is in this form:
   

"(b) Preference shall be given to members of either of the unions, or persons eligible to become members of the unions and for whom either of the unions declares to act as an agent, in retention of employment under the award, in the event of compulsory retrenchment. Such preference shall be given in the following manner:-

. Where the Company is aware that such persons as previously specified, or persons holding a current certificate under Section 267 of the Industrial Relations Act, is willing and able to continue to perform work under the award in respect of which work the Company intends to reduce the number of employes (sic) by compulsory retrenchment, the Company shall retain in employment such members of either union in preference to persons who are not members of either union. Such preference shall be given subject to the following conditions:-

(i) Prior to implementing compulsory retrenchment, the Company will confer with the unions in the consultative process to reach agreement on the procedures and manner of any reduction in positions of numbers of persons employed under the award.

(ii) Nothing in this clause shall require the Company to retain in employment a person the Company can demonstrate is not competent to meet job requirements.

(iii) Nothing in this clause shall affect the right of the Company to summarily dismiss an officer for serious misconduct.

(iv) Nothing in this clause shall affect the Company's right to retire a person who has reached the normal retirement age."

1. Sub-clause (c) provides that any dispute arising out of the application of the clause shall be referred to the Australian Industrial Relations Commission.

2. On 14 September 1992, Qantas acquired all the shares in Australian Airlines Limited ("Australian Airlines"). It commenced to integrate the operations of the two companies. This involved some restructuring of staff. Some Qantas employees were removed from the positions they formerly occupied and replaced by persons previously employed by Australian Airlines. The ASU contended that this action contravened cl.45(b), even where the preferred employee was a member of one of the two unions. The respondents disputed this view, contending that cl.45(b) was irrelevant to the situation.

3. I agree with the respondents that cl.45(b) is irrelevant to the matter which gave rise to the present dispute. The only effect of cl.45 is to require Qantas to give preference to union members over people who are not union members. It has nothing whatever to do with preference for persons who are already Qantas employees over those who are not.

4. Counsel for the applicant raised three issues of interpretation concerning cl.45(b): the point of time at which the obligation imposed by the sub-clause arises; the meaning of the words "in retention of employment" and the width of the word "work".

5. So far as the first matter is concerned, there turned out to be no issue between the parties. Counsel for Qantas agreed that the sub-clause operated when the company decided to retrench compulsorily any employee or employees; although they added that no breach would occur until Qantas actually dismissed the employee or employees. The company would then have failed to retain that employee, or those employees, in employment.

6. The parties are divided upon the second matter. It is, perhaps, the major issue in the case although, as I have said, it has nothing to do with the question whether a Qantas employee may be replaced by someone who previously worked for Australian Airlines.

7. Counsel for the applicant contended that the word "employment", in cl.45(b), refers to the particular position held by a Qantas employee; so that the sub-clause comes into operation whenever there is a proposal to move a person from a particular position to another position within the company. In support of that submission, counsel referred to several other provisions in the Award. I think they indicate the opposite; that "employment" is a wider term than "position". During the course of a term of employment with Qantas, a particular employee may serve successively in numerous positions. This is evident from the provisions of the Award dealing with the movement of employees from one position to another: see, for example, cl.7(g), cl.8(a) and cl.8(d). The last sub-clause is particularly telling. It provides:
   

"(d) When any position becomes redundant the Company shall, as far as practicable, make adequate arrangements to relocate the officer affected and advise him/her of such arrangements with reasonable expedition."

1. This sub-clause clearly contemplates that the relationship of employer/employee survives the loss by the employee of a particular position.

2. The third issue argued by counsel relates to the word "work". Consistently with his submission on "employment", counsel for the applicant said that this word refers to the duties associated with a particular position. Counsel for the respondents contended that it refers to any work within the company, of whatever nature; the substantial entitlement conferred by cl.45(b) is retention of employment, not retention of any particular position.

3. I agree with the respondents' description of the nature of the entitlement conferred by cl.45(b). But I do not think that the word "work" necessarily refers to all work within Qantas. "Work" cannot be construed in isolation. The opening sentence sets out the fundamental rule imposed by the sub-clause; namely, that, in a case of retrenchment, preference be given to union members, as against non-union members, in retention of employment. The following sentence sets out the manner in which this rule is to be achieved. First, there must be -
   

"work under the award in respect of which work the Company intends to reduce the number of employes (sic) by compulsory retrenchment".

1. I interpret this phrase to refer to that part of Qantas' work activities that is subject to the reduction proposal. The part must be determined by reference to function, not geographical location. If, for example, Qantas decided to reduce the number of its computer operators, the pool of people to be considered in applying the sub-clause would be those employees who were currently computer operators. The preference provision must be applied as between people equally capable of doing the relevant work. If it were applied by reference to geography, for example by taking as the relevant pool all Qantas personnel in a particular city, the sub-clause might result in a serious staff imbalance; too many baggage handlers but no managers, or the reverse.

2. This construction gives effect to the principle that, where a choice has to be made between like workers as to who shall go and who shall stay, preference is to be given to union members; while avoiding personnel imbalance.

3. The FCU submission is close to my understanding of the proper interpretation of the sub-clause. That submission suggested that the true construction of the sub-clause was as follows:
   

"(i) in the event that any company respondent to the Award intends to reduce the numbers of employees by compulsory retrenchment, a member of the Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union or the Federated Clerks Union (the "Union") or a person eligible to become a member of the Union and for whom either of the Unions declares to act as an agent, or a person holding a current certificate under Section 267 of the Industrial Relations Act, whose job/position is not discontinued shall in preference to all other employees who are not members of the Union be retained in employment.

(ii) in the event that any company respondent to the Award intends to reduce the number of employees by compulsory retrenchment, a member of the Australian Municipal, Transport, Energy, Water, Ports, Community and Information Services Union or the Federated Clerks Union (the "Union") or a person eligible to become a member of the Union and for whom either of the Unions declare to act as an agent, or a person holding a current certificate under Section 267 of the Industrial Relations Act, whose job/position is to be discontinued, shall be retained in employment by the company concerned and relocated to a continuing job/position under the Award in preference to all other employees who are not members of the Union."

1. The primary submission of the applicant is, of course, at odds with this interpretation. But counsel for the respondents agreed with it; subject to the interpolation, after the word "employees" where last appearing in each paragraph, of the words "performing the same work". So the preference would be "to all other employees performing the same work who are not members of the Union". As will be apparent, I agree with that interpretation.

2. I make the formal order that the Application be dismissed.