[2017] FWC 1526

The attached document replaces the document previously issued with the above code on 4 April 2017.

The document is amended to correct a typographical error in paragraph 185. In particular, the text in what was previously sub-paragraph 185(d) (sentence beginning with ‘Whilst this is an outcome’) has been inserted into sub-paragraph 185(c). Sub-paragraph 185(d) now correctly commences with ‘this application is decidedly.’

Peter Willink

Associate to Deputy President Sams.

6 April 2017.

[2017] FWC 1526
FAIR WORK COMMISSION

DECISION


Fair Work Act 2009
s 238 - Application for a scope order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union; Australian Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Qantas Airways Limited t/a Qantas
(B2016/1237)

DEPUTY PRESIDENT SAMS

SYDNEY, 4 APRIL 2017

Application for a scope order – two expired enterprise agreements – aircraft maintenance industry – distinction between line maintenance and base (heavy) maintenance – different geographic locations – application seeks one agreement rather than two – whether good faith bargaining requirements met – whether application premature – whether scope order will promote fair and efficient conduct of bargaining – whether reasonable in all the circumstances to make the scope order – long history of separate negotiations for the two agreements – inconvenience and duplication – objectively considered – relevant principles – good faith bargaining requirements met – scope order would not promote fair or efficient bargaining – not reasonable in all the circumstances to make the scope order – s 238(4) of the Act not satisfied – application dismissed.

[1] Three Unions, 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (‘CEPU’) (hereinafter referred to as the ‘Alliance Unions’) have made an application for a scope order, pursuant to Part 2-4 of the Fair Work Act 2009, (the ‘Act’) in respect to bargaining with Qantas Airways Ltd (‘Qantas’) for an enterprise agreement/s to replace the Qantas Airways Ltd Enterprise Agreement No 9 (the ‘Mainline Agreement’) and the Qantas Airways Limited (AWU, AMWU, CEPU) Brisbane Base Maintenance Enterprise Agreement No 4 (the ‘Brisbane Agreement’). It is not disputed that there are approximately 328 employees covered by the Brisbane Agreement and 466 employees covered by the Mainline Agreement, mostly in Sydney and Melbourne. Both agreements have passed their nominal expiry dates (31 December 2016) and the parties have commenced negotiations for their replacement, albeit that the negotiations have not advanced beyond the Alliance Unions tabling a ‘log of claims’ (‘list of issues’) at two meetings with Qantas management on 8 December 2016.

[2] A major preliminary stumbling block to negotiations progressing has been the Alliance Unions’ claim that there should only be one agreement and consequently, one set of negotiations to replace the two expired Agreements. Qantas is opposed to that course and outcome and seeks to retain two Agreements – hence, this scope order application.

[3] The application was filed on 24 November 2016 and initially listed for conference on 1 December 2016. Under the auspices of the Fair Work Commission (the ‘Commission’), an interim agreement was reached to activate the negotiations (8 December), without the parties resiling from their opposing positions on the scope order application. A further conference with the Commission was convened on 22 December 2016, but no ongoing agreement as to scope or the conduct of future negotiations, could be reached. Accordingly, the Commission issued directions for the filing and service of evidence and outlines of submissions with a shortened time period to allow the application to be listed for hearing on 22 and 23 February 2017. In the meantime, the Commission dealt with an objection by the Alliance Unions to Qantas being represented by a lawyer for the purposes of preparing submissions, communicating with the Commission (Rule 12) and appearing at the hearing (s 596). The Alliance Unions objection was dismissed; see: Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU); Australian Workers' Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited t/a Qantas [2017] FWC 805.

[4] At the hearing of the substantive application, Mr M Nguyen appeared for the AMWU, Ms J Gherjestani for the AWU, Mr G Noble for the CEPU and Mr M Follett of Counsel appeared for Qantas, with permission having been granted, pursuant to s 596 of the Act.

[5] In setting out the background to this application it is useful, at this juncture, to set out the provisions of the Act and the powers of the Commission to make a scope order. Section 238 reads as follows:

[6] At this point, I note that Qantas has accepted the procedural prerequisites set out in ss 1, 2 and 3 of s 238 before the Commission considers the matters under ss 4 and 4A. As a matter of practicality, I also accept that the group of employees proposed to be specified in the scope order will cover all of the employees covered by the agreement/s and therefore the group of employees was ‘fairly chosen’ for the purposes of ss 4(c) of s 238.

[7] Thus, the focus of the parties’ submissions dealt with whether the Commission could be satisfied that:

THE EVIDENCE

[8] The following persons provided statement and/or oral evidence in the proceeding:

For the Alliance Unions

Mr Glen Thompson

[9] Mr Thompson was involved in the negotiations for the first Brisbane Agreement in 2003/04. These negotiations also involved Sydney members and delegates who intended to transfer to the new heavy maintenance facility being set up in Brisbane. At that time, heavy maintenance was also carried out in Melbourne and Sydney. However, the ‘baseline’ for the new Brisbane Agreement was predominantly the same as applied in the other two locations, with ‘the exception of some matters.’ These were:

It was Mr Thompson’s evidence that Qantas’ objective at the time was to operate the Brisbane facility with different flexibility arrangements, including reducing idle man hours. He said the differences between the two Agreements have remained the same ever since.

[10] Mr Thompson deposed that:

[11] Mr Thompson set out the history of negotiations which disclosed that:

[12] Mr Thompson claimed that a single planning process had been previously supported by Qantas. He cited examples such as when:

Mr Thompson also cited examples of former area specific clauses in the Mainline Agreement, such as the A380 roster only applying to Sydney; Melbourne only based positions; separate Sydney and Melbourne component maintenance and Sydney Engine maintenance; and a flexibility clause in Melbourne to deal with heavy maintenance on Boeing 737s. This last matter was successfully negotiated locally, but was included in the Mainline Agreement. This is the approach which the Alliance Unions have, and will take to ensure area specific issues are not outvoted by the majority (in Sydney and Melbourne).

[13] Mr Thompson observed that in the past Qantas would generally send out a letter with a summary of agreed outcomes from the negotiations. These summaries were predominantly the same, ‘with some differences to reflect specific work outcomes.’ The agreed outcomes would also be sent out again, with generally consistent outcomes for the two Agreements. He said that the general pattern was for the Mainline negotiations to conclude before the Brisbane negotiations, noting that the outcomes for Brisbane Agreement 2 and Mainline Agreement 7 were exactly the same (save for a reference to a new clause applying to Melbourne heavy maintenance).

[14] Mr Thompson said the outcomes for Brisbane Agreement 3 and Mainline Agreement 8 were predominantly the same, including for:

[15] Minor differences related to:

It was Mr Thompson’s evidence that these local issues were either uncontroversial and/or agreed. He could not recall any negotiations about some of them. In his view, they did not result in any inefficiency in the bargaining process.

[16] Mr Thompson said that the negotiations for Brisbane Agreement 4 and Mainline Agreement 9 resulted in the same outcomes, except for one item – the introduction in the Mainline Agreement of the ‘A’ category Company Authorisation Allowance, which is not applicable to heavy maintenance.

[17] Mr Thompson outlined the preliminary processes for the current round of negotiations. In June 2016, he had requested one set of negotiations, which Qantas did not agree to. Qantas was open to other ways of facilitating efficient bargaining and agreed to paid meetings and travel for delegates. The parties’ different positions as to scope were reaffirmed in August and September 2016.

[18] Mr Thompson described the initial meeting on 27 October 2016 as an overview of how the business was operating and what challenges it faced. Various managers provided reports on the particular business units. The issue of scope was raised and debated. He expressed concern that the Union members in Brisbane were prejudiced and were being disadvantaged. Members in Brisbane felt like ‘second class citizens’ because more negotiations were happening under the Mainline Agreement than in Brisbane. Accordingly, National delegates had agreed to one set of negotiations. He noted that Qantas had agreed in the past to support the Unions’ national planning process, involving joint claims and outcomes.

[19] Mr Thompson said Qantas maintained its position and further meetings were agreed for 24 November, 8 and 14 December 2016. The first meeting was to receive a report on the Company’s financial position. It was agreed to be a joint meeting on a ‘without prejudice’ basis with the scope issue still in dispute. Further correspondence was exchanged between the parties throughout November, until the Alliance Unions lodged this application for a scope order on 24 November 2016.

[20] Mr Thompson described the meetings on 8 December 2016, in which:

[21] Mr Thompson said that during these meetings, the delegates and officials spoke to a number of claims such as:

[22] Qantas offered to provide what information it could in the meetings scheduled for 14 December 2016 (the meetings did not take place). The Unions again sought a joint meeting, but Qantas insisted on two meetings with Mr Saunders saying there will be two presentations and separate content for different locations and heavy maintenance, as the outcomes are different, particularly in respect to different timings of decisions reflecting line and heavy maintenance differences. Mr Saunders had added that 789 aircraft and apprentices are not relevant to Brisbane.

[23] Mr Thompson claimed that the second meeting with Brisbane delegates largely reflected what had been said earlier at the Mainline meeting. Qantas proposed that the 14 December meeting was for the Mainline Agreement, including the Boeing 787 aircraft and apprentice issues and the 15 December meeting would be for the Brisbane Agreement, dealing with third party and contractor information.

[24] Mr Thompson said that after further discussion with the Alliance Unions, the Unions said they would be pressing the scope issue as a threshold issue and Qantas (Mr Smith) replied that it was pointless to engage in further discussions until the matter is heard.

[25] Mr Thompson had attended a number of mass meetings of members in July 2016, involving approximately 280 members in Sydney and 250-300 in Brisbane and 90 in Melbourne. All the meetings supported pursuing one set of negotiations for one Agreement. Mr Thompson also stated that senior delegates across all sites had reported to him of the overwhelming support they had received from one-on-one discussions with members for a single set of negotiations.

[26] Mr Thompson described the examples of common work conducted between Brisbane and the other sites:

[27] In a reply statement, Mr Thompson said that Qantas’ concerns with the flexibilities specific to Brisbane were unfounded, as none of the Alliance Unions’ claims related to those matters. Further, the issue of the use of contractors was a common position of both Mainline and Brisbane employees.

[28] Mr Thompson said there is no link, as asserted by Mr Crawford, between the location of work and CASA’s requirements for maintenance work to be approved. The Alliance Unions have consistently sought to ensure onshore heavy maintenance of all Qantas’ maintenance requirements. This requires a competency based career path in order to prepare for new technologies on the A380, Boeing 787 and A330 aircraft. CASA approvals are not dependent on location in Australia.

[29] Mr Thompson rejected Mr Crawford’s assertion of historic industrial difficulties having resulted in third party perceptions of risk in relation to the performance of work. He noted that since the making of the first Brisbane Agreement, there had been no industrial action of any kind. While the ALAEA had once taken national action, this did not appear to have adversely impacted on third party views.

[30] Attached to Mr Thompson’s statement were a number of petitions signed by employees under both Agreements which disclose that 59.4% of Mainline employees and 76% of Brisbane employees support a single Agreement. Mr Thompson emphasised that both groups of employees have common interests of ensuring heavy maintenance remains in Australia, as line maintenance employees would be affected if their necessary skills were lost. Job security is therefore a common issue.

[31] Mr Thompson rejected Mr Saunders’ view that he was not aware of any difficulties for Brisbane employees in negotiating their Agreement. However, Mr Saunders had not been involved in any Brisbane or Mainline negotiations until this current round. The past history reveals that the Mainline Agreement is finalised first and simply applied to Brisbane as the ‘forgotten cousin.’ Members in Brisbane have always believed that once the Mainline Agreement is endorsed, the position of Qantas in respect to Brisbane, does not change. He believed that having Brisbane at the table from the beginning would ensure their interests are heard and recognised.

[32] Mr Thompson rejected Mr Saunders’ assertion that Brisbane delegates would be outnumbered and their voice diluted if there was one agreement. The practice has been that each Union has two delegates from each of the Unions from each site (except West Australia with one delegate from each Union). In any event, the Alliance Unions Bargaining Committee has a consensus position on all the Unions’ claims.

[33] Mr Thompson raised issues about the nature and format of meetings proposed by Mr Saunders, which he disagreed with, or could not recall. Mr Thompson insisted that on 8 December 2016, the Alliance Unions had presented a log of claims to Qantas and not just a ‘list of issues.’

Mr Glen Wilcox

[34] Mr Wilcox has been an Aircraft Engineer employed by Qantas for 21 years and is the AMWU convenor in Sydney. He has been involved in the last four negotiations for the Mainline Agreement. Mr Wilcox said that he had spoken to many Union and non-Union members in Sydney who understood the concerns of their Brisbane ‘brothers’ of not having a ‘seat at the table.’ Some of them had expressed concerns about duplication of time, processes, resources and costs.

[35] Mr Wilcox’s description of the usual bargaining process generally accorded with Mr Thompson’s evidence. He added that where specific area matters are raised, a smaller sub-group relevant to the issue would be formed to report back to the wider group. Mr Wilcox believed there was duplication with the current process. He understood why Brisbane delegates felt the process was irrelevant to them, as outcomes had already been agreed to, in principle, in the Mainline Agreement.

[36] Mr Wilcox described the process of apprentices completing their training in a heavy maintenance environment, from when Sydney closed and apprentices completed training in Avalon and when Avalon closed they rotated to Brisbane. This practice continues today with relocation expenses negotiated for them from time to time. Mr Wilcox also identified examples of when line maintenance employees have transferred to Brisbane as additional support during busy times and vice versa.

[37] Mr Wilcox claimed that there used to be eight positions in line maintenance which were filled by Brisbane heavy maintenance employees. With the announcement of redundancies in Sydney and Melbourne in 2014, the Unions pressed for four of these positions to be made available to employees who, would otherwise be made redundant. This resulted in four of the positions being filled by displaced Sydney/Melbourne AMEs and the remaining four were filled by heavy maintenance employees. Mr Wilcox believed the question of whether Sydney continued to perform heavy maintenance work was a ‘grey area.’ He said that work taking some weeks, which could be considered heavy maintenance, was performed in Sydney, such as the recent reconfiguration of the Boeing 747 aircraft. He understood 40 of these aircraft were reconfigured in Sydney and 25 in Brisbane.

[38] In addition, Mr Wilcox said that Sydney will also be doing a WIFI modification to some aircraft in conjunction with Brisbane. This involves work on the aircraft’s exterior. Mr Wilcox also understood that there is to be a trial of line maintenance checks on Boeing 787 aircraft in Brisbane. Mr Wilcox believed the interests of the employees covered by the two Agreements has not and did not conflict.

[39] In a reply statement, Mr Wilcox said that Mr Crawford’s statement, in which he identified certain base maintenance work, was not correct, as some of his examples were also performed in line maintenance, such as:

[40] Mr Wilcox rejected Mr Crawford’s claim that the training for base and line maintenance is different. In his experience the skills and competencies are exactly the same. When he had moved from base to line maintenance, he still undertook complex rectification and repair to aircraft and aircraft components, without the need for any retraining. When he undertook his trades apprenticeship, it included modules which encompassed both base and line maintenance. Without the training, you cannot achieve the position of an AME. Mr Wilcox agreed that disassembly is not the same, but it is similar. He described the recent Boeing 737 reconfiguration, as superficial and not significant. The work involved removing all seats, tracks, toilets, lockers and floor structure and splicing new sections and replacing them. To demonstrate this work was superficial, Mr Wilcox set out the various tasks and skills involved.

[41] Mr Wilcox said that in his 20 years of working at Qantas, he and his colleagues have never heard or come across the term ‘intermediate maintenance.’ It is either heavy/base maintenance or line maintenance. The latter is characterised by tasks undertaken in short time frames, usually conducted between flights. When Mr Crawford refers to ‘intermediate maintenance’ an aircraft could be out of service for up to seven days.

[42] Mr Wilcox rejected other parts of Mr Crawford’s and Mr Saunders’ statements, including:

[43] Mr Wilcox said that the Alliance Unions and employees have had an interest in Brisbane’s ongoing viability, because it is necessary for training. Many of his friends and colleagues who had transferred from Sydney and Melbourne have a joint sense of pride working for the one organisation - an Australian icon.

Mr Samuel Corrie

[44] Mr Corrie is employed by Qantas as a Planning Clerk. He previously held the position of AME Mechanical and has worked for Qantas for 13 years. As a Union delegate, he has been involved in the bargaining team for the last two Brisbane Agreements.

[45] It was Mr Corrie’s evidence that apart from one person, everyone he had spoken to was supportive of one agreement. He believes that the Brisbane employees have less power in their negotiations and generally feel they are the ‘poor cousins’ who do not have a voice in matters affecting them. This is because decisions are made at the Mainline negotiations which are then presented to the Brisbane negotiators as Qantas’ final position. As a result, his members felt disconnected from engineering, because all the decisions affecting their business are made in Sydney. Information is not shared across the business, even though it may affect Brisbane. Mr Corrie did not accept that:

[46] Mr Corrie believed that separate clauses can still apply to Brisbane in a single agreement and Brisbane employees will make their own decisions about industrial action. Mr Corrie also gave examples of where work was interchangeable or rotated between heavy maintenance and line maintenance employees in Sydney and Adelaide, including a current proposal to perform Boeing 787 line maintenance in Brisbane. He believed all employees have a common interest in job security, keeping work onshore, training skills and improved entitlements.

[47] In a reply statement, Mr Corrie said he had never heard of the terms ‘General Maintenance Agreement’ or ‘intermediate maintenance.’

[48] Mr Corrie said that all AMEs share a common apprenticeship during which they are rotated through heavy maintenance and line maintenance. This means an AME can easily assimilate in either environment. While specific training for specific areas is required, it does not take as long as Mr Crawford had claimed. It is more akin to an induction (taking about a week) as to the location of particular equipment. Mr Corrie noted that contractors, from outside the airline industry take a longer period to understand the work.

[49] Mr Corrie rejected Mr Crawford’s claim of differences in certification for confined spaces. Certification only takes about a day and does not reflect different types of work. It is not a special qualification. Mr Corrie noted that all AMEs work under the direction of licensed aircraft maintenance engineers (‘LAMEs’), who have a single agreement across Qantas.

[50] Mr Corrie said that the Brisbane workforce is capable of doing any type of maintenance work, because it involves the same skill sets. He cited his own experience as an apprentice, in which the skills he used in line or base maintenance, were the same. Crane tickets are not a major qualification. Mr Corrie believed there is nothing in the Mainline Agreement which would prevent Qantas doing base maintenance. In any event, Brisbane specific terms can still apply to a single agreement.

[51] Mr Corrie said that much of the work Mr Crawford described as ‘intermediate’ can be performed in a base maintenance environment, such as one day checks on aircraft. Mr Corrie said it was incorrect to say that the Qantas Part 145 Approved Maintenance Organisation MOE (the ‘Qantas MOE’) is a fixed document. If a particular type of work is not comprehended by the current Qantas MOE, an application can be made to the Civil Aviation Safety Authority (‘CASA’) to ensure the necessary requirements are met. He cited an example of the Hawaiian Airlines aircraft which came to Brisbane for heavy maintenance. Qantas was required to be approved by the US Federal Aviation Authority.

[52] Mr Corrie said it was not ‘entirely correct,’ as Mr Crawford asserted, that Brisbane employees support the use of ‘top up’ contractors. There is always capacity to negotiate the need for using contractors on a wider basis than just ‘peaks and troughs.’ Mr Corrie claimed that in his experience, the rostering flexibility clause has never been used and Qantas has never changed rosters in Brisbane. Even so, there is no move to change the rostering flexibility in the Brisbane Agreement. Nor is there any proposal to change or remove the Flexibank arrangement in Brisbane. In addition, reporting arrangements would not change with one agreement. He believed that different work areas could still retain their local conditions and would only be dealt with by the people who work at the location.

[53] Mr Corrie agreed with Mr Thompson that on 8 December 2016, the Alliance Unions had presented Qantas with a log of claims, with some claims requiring further information before refinement. Mr Corrie claimed that Qantas’ decision not to provide information to Brisbane delegates was a clear example of why they feel segregated. The Brisbane delegates wanted to know the ‘full picture’ as this impacts on job security, and what they might be missing out on in terms of other work across the business. Mr Corrie believed it would be fairer to have one negotiation and not have a weaker, segregated voice. This is particularly important in respect to training and further work opportunities, should maintenance locations change in the future.

FOR QANTAS

Mr Nicolas Saunders

[54] Mr Saunders is employed by Qantas as Senior Manager, Industrial Relations and has been in this role since June 2015. He is involved in bargaining as Qantas’ lead representative for both the Mainline Agreement and the Brisbane Agreement.

[55] Mr Saunders provided some contextual background to Qantas’ engineering operations. He said there are four types of aircraft maintenance performed by Qantas in Australia, being:

[56] Mr Saunders said that base maintenance work is the most significant and onerous maintenance that is undertaken by Qantas. It can require the complete or substantial disassembly of an aircraft, or part of an aircraft. He described intermediate and line maintenance as more general maintenance activities. He said line maintenance is performed on an aircraft each time it arrives at a Qantas port and intermediate maintenance is performed less regularly, but still more often than base maintenance. It includes safety checks, unplanned repairs and the monitoring and replacement of components intended to be perishable and replaceable (such as tyres, filters and hoses).

[57] Mr Saunders described how both the Mainline Agreement and the Brisbane Agreement contain four classifications of employees:

[58] Mr Saunders said that historically, Qantas performed base maintenance work on all of its aircraft for the life of those aircraft. In 2001, Qantas operated three base maintenance facilities located in:

[59] Mr Saunders described how in 2001, Qantas invested in the construction of a new purpose-built base maintenance facility, incorporating multiple aircraft hangars and associated infrastructure in Brisbane (with some investment from the Queensland Government in relation to the infrastructure). He said that the facility’s construction was eventually completed in July 2005. However, base maintenance work had already started on 1 November 2004.

[60] By 2005, Sydney’s base maintenance facilities were outdated, in need of repair and were struggling to keep up with the increasingly complex and burdensome requirements of base maintenance work on newer aircraft. Accordingly, a decision was made to cease base maintenance in Sydney, which took effect in 2006. Affected employees were either retrenched or redeployed to other roles within Qantas, including to the new Brisbane facility.

[61] Mr Saunders said that in 2005, when the Brisbane facility was entirely new and purpose-built, Qantas determined that the new operation warranted an equally customised and specific set of employment terms and conditions. He believed separate enterprise agreements were desirable to ensure that the terms and conditions applicable to base maintenance employees were representative of the flexibility required to undertake their work. This would help enable the facility to remain profitable and sustainable.

[62] In February 2005, the AMWU and the AWU had agreed to Qantas’ proposal for a separate enterprise agreement and entered into the Qantas Airways Limited (AWU, AMWU) Brisbane Heavy Maintenance Enterprise Agreement [2005] (‘2005 AWU/AMWU Brisbane Agreement’) with Qantas. In October 2005, the CEPU had also agreed to Qantas’ proposal for a separate enterprise agreement and entered into the Qantas Airways Limited (CEPU) Brisbane Heavy Maintenance Enterprise Agreement (‘2005 CEPU Brisbane Agreement’).

[63] Mr Saunders said that since these initial agreements, Qantas and the Alliance Unions have entered into the following enterprise agreements in relation to the base maintenance facility in Brisbane:

[64] Mr Saunders believed that the pressures and timing requirements of base maintenance are unique and require its own set of terms and conditions. It involves the removal of a plane from service for a significant period of time. It effectively means foregoing the earning potential of that plane. It is therefore critical that base maintenance is completed within its scheduled time and for an aircraft to return to service on time to ensure that the costs are not higher than expected. This is particularly problematic if base maintenance work is undertaken for a third party airline. Mr Saunders said that a short and reliable turnaround time is a key commercial and competitive advantage in Brisbane, which allows it to secure and retain customer work. To meet these deadlines, it is sometimes necessary to roster additional employees or additional shifts. Conversely, there are sometimes occasions where it is necessary to temporarily reduce the number of employees working in base maintenance. Gaps in base maintenance work may extend for days, weeks or months. He described these periods as the regular ‘peaks and troughs.’

[65] In contrast, line maintenance, intermediate maintenance and CMS are not as vulnerable to the peaks and troughs in work demand. These categories of maintenance are subject to a more constant flow of work, because of the 24/7 arrival of aircraft at Qantas’ major airports. Mr Saunders described how delays in line maintenance and intermediate maintenance (and the associated unavailability of an aircraft) have less severe consequences than the same delays in base maintenance and are therefore not seen as being as significant. Equivalent delays in base maintenance would significantly erode Qantas’ and base maintenance’s competitive advantage.

[66] Mr Saunders further expanded on these contentions. The global market for base maintenance work is highly competitive, with a relatively large number of Maintenance Repair Organisations (‘MROs’) competing for work. The nature of base maintenance work is that it is predictable, scheduled and involves the removal of an aircraft from service for an extended period of time. These factors make the work conducive to outsourcing to third parties (including offshore) with relative ease. Conversely, he said line maintenance and intermediate maintenance involve short turnaround times and tight timeframes that are not conducive to international outsourcing. It was not possible for Qantas to compete with offshore providers on cost alone. Rather, base maintenance must ensure that it is able to complete its work quickly, reliably, to the highest quality and as scheduled, in order to justify its higher cost.

[67] Mr Saunders said that there are several differences between the Mainline Agreement and the Brisbane Agreement which are intended to tailor the Brisbane Agreement to the operational requirements and pressures of the Brisbane base maintenance facility. Of those differences, the primary two are the Flexibank system and the ability to transition employees between rosters, without the requirement of a majority vote.

[68] The Flexibank system allows employees to accrue a ‘bank’ of overtime hours (up to 172 hours). Under this provision, employees either:

In contrast, employees under the Mainline Agreement may only:

[69] The Flexibank system also allows Qantas to stand down base maintenance employees using hours accrued in the Flexibank (up to 38 hours per calendar year). When time is stored in the Flexibank, an employee may elect to have the accrued time paid out. If Mainline employees had the ability to accrue overtime in a Flexibank and take it on a discretionary basis, it would reduce the ability of the business to ensure that a consistent supply of labour was available for the performance of line maintenance, intermediate maintenance and CMS and represent too great a liability for Qantas to maintain on an ongoing basis.

[70] Mr Saunders described how the Brisbane Agreement includes three separate rosters that base maintenance employees can be transitioned between. The Agreement enabled Qantas to implement alternate shifts and rostering, without the need for a majority vote of affected employees. He referred to cl 25.18.4 of the Brisbane Agreement, which allows for proposed rostering changes to be implemented on the completion of consultation, a call for volunteers and a seven day notice period. These flexibilities allow Qantas to meet the demands of the ‘peaks and troughs’ in work flow described above. On the other hand, the Mainline Agreement requires a majority vote of affected day workers or shift workers to introduce a change of rostering (beyond a change to the day on which ordinary hours are to be worked or the spread of daily hours).

[71] Mr Saunders said that the relatively consistent flow of work to intermediate maintenance, line maintenance and CMS means that Qantas has not found it necessary to require the same rostering flexibilities of Mainline employees as those that apply to Brisbane employees.

[72] Mr Saunders said that he was unaware of any previous difficulties that had arisen in relation to the fairness or efficiency of bargaining for the predecessor agreements to the two current Agreements. In particular, he said there has not been:

[73] Mr Saunders described the chronology of the current round of bargaining. On 29 April 2016, Mr Thompson sent him letter requesting the release of delegates to attend a training and bargaining preparation session. On 14 June 2016, Mr Saunders telephoned Mr Thompson to respond to his letter of 29 April. During these discussions, Mr Thompson requested that Qantas provide a position in relation to:

[74] On 17 June 2016, Mr Saunders telephoned and emailed Mr Thompson to advise that:

[75] On 13 October 2016, Mr Saunders wrote to the Alliance Unions, requesting their attendance at a meeting in Sydney on 27 October 2016 to commence bargaining by initially holding a ‘meet and greet.’ On 13 and 14 October 2016, Qantas distributed the Notice of Employee Representational Rights to relevant employees for the proposed:

[76] During the ‘meet and greet’ on 27 October 2016, a manager from each section of maintenance (base, intermediate, line and CMS) gave a brief presentation in relation to the work their section performs and the current issues facing that section. The purpose of these presentations was to:

They also discussed general housekeeping matters and ground rules. He said that no bargaining positions or claims were discussed by any party at this meeting.

[77] On 2 November 2016, the Alliance Unions wrote to Qantas to advise that they did not consider that bargaining was proceeding efficiently or fairly and that a single agreement would result in more efficient and fair bargaining. Mr Saunders described the letter as ‘somewhat surprising, given that at that time no bargaining had commenced and no discussions or exchanges of position regarding bargaining or the terms of any replacement agreements had taken place.’

[78] Mr Saunders explained that another joint meeting was held on 24 November 2016 with Mr La Spina, Qantas Group Chief Financial Officer, the Qantas bargaining team and bargaining representatives from the Alliance Unions (both in relation to the Mainline Agreement and the Brisbane Agreements). The sole purpose of the meeting was to hear from Mr La Spina, who Mr Saunders believed was the best person to provide the additional information that Qantas wanted to give the Unions as context to the upcoming rounds of bargaining. As no negotiations were required, he agreed that this should be a combined meeting, as it was also necessary due to Mr La Spina’s schedule. Mr Saunders said that during the meeting, he proposed dates in December 2016 when Qantas was able to meet in relation to each Agreement. In response, Mr Thompson said that the Alliance Unions would not agree to further separate meetings; rather, the Alliance Unions would insist on combined meetings and that they had lodged a scope order application with the Commission.

[79] Mr Saunders described his recollection of the meetings on 8 December 2016, following the conference with the Commission, involving the Qantas bargaining team and bargaining representatives from the Alliance Unions. The day comprised the following meetings:

[80] Mr Saunders had understood that the purpose of the meetings was for the Alliance Unions to present their log of claims and that this understanding was based on his interpretation of the directions from the Commission at the conclusion of the conference on 24 November 2016. During the meetings of 8 December 2016, Mr Thompson stated that the Alliance Unions:

[81] Mr Saunders claimed that with the exception of a small number of obvious ‘issues’ (such as a 4% wage increase), the information put to Qantas was not sufficiently detailed to allow Qantas to ascertain or understand the Alliance Unions’ bargaining position or claims. For example, the extent of the information provided on these ‘issues’ was no more than:

[82] Mr Saunders said that once Mr Thompson had finished reading the ‘list of issues,’ he again restated that the list was not a log of claims and that the Alliance Unions would not be in a position to formulate or provide a log of claims until such time as Qantas provided the requested information. The Alliance Unions requested further information in regard to Qantas’:

[83] Qantas insisted the information in relation to the two Agreements would be presented in separate meetings. The information in relation to each group would be different because of the distinct nature of each group and certain information would only be relevant to one or other of the groups, and some of the information would be easier to obtain in relation particular maintenance groups than others. Mr Saunders believed it would be significantly more burdensome to hold these meetings jointly. This view was explained by Mr Smith.

[84] Mr Saunders rejected Mr Thompson’s evidence that he had said ‘the skills and tasks are the same in heavy maintenance and line maintenance.’ He said this was a mischaracterisation of the point he made on 8 December 2016 which reaffirmed that base maintenance requirements are unique.

[85] Mr Saunders said that Qantas offered to hold separate meetings on 14 and 15 December 2016, but the Alliance Unions declined the offer and instead proposed a combined meeting on 14 December 2016. Notwithstanding agreement could not be reached as to when they would meet again, he started to collate the requested information.

[86] On 9 December 2016, Mr Saunders sent an email to the Alliance Unions confirming that Qantas was able to meet again and was able to start providing the requested information on 14 December (for the Mainline Agreement) and 15 December (for the Brisbane Agreement). He received no response.

[87] Mr Saunders added that a Sydney based AME (Vlado Maric), had notified Qantas that he is as an individual bargaining representative (representing himself) in relation to the Mainline Agreement. Qantas had met with him separately.

[88] Having spoken with managers from each maintenance area, Mr Saunders understood that Qantas is generally happy with the way that the Brisbane Agreement regulates the performance of work in base maintenance. Qantas’ key claims for the Brisbane Agreement would likely focus on further tailored, nuanced changes to provide the necessary rostering and resourcing flexibility to deal with variable work demands and to assist in pursuing third party base maintenance work.

[89] In regards to numbers of attendees at meetings, Mr Saunders believed approximately twenty people (including National Union officials and employee representatives) attended the joint meetings on behalf of employees and the Alliance Unions. Only three of those twenty attendees are employee representatives for the Brisbane Agreement.

[90] Mr Saunders described how prior to the Alliance Unions’ correspondence of 16 September 2016 and the application made to the Commission on 24 November 2016, the Alliance Unions had not advised Qantas that they wanted to change the scope of the Agreements; rather, correspondence was confined to meeting logistics only. Further, prior to the lodgement of the scope application, not one employee, participating in bargaining (including Union delegates), had mentioned that scope was an issue.

[91] Based on his experience, Mr Saunders believed that scope is an issue that can be discussed and bargained over (i.e. traded for other conditions or compromised). Alternatively, scope is an issue that can be ‘carved out and put aside’ while the balance of the issues are considered and negotiated. To this point, Mr Saunders did not accept that bargaining had been inefficient; rather he said that the parties are yet to commence bargaining, so the efficiency of it, or otherwise, remains to be seen.

[92] To the extent that the Alliance Unions are concerned about duplication of process or limitations on the bargaining representatives’ ability to attend meetings arising from two agreements, these concerns, in his opinion, are overstated. In any event, there are a number of measures that have and can be undertaken to address these concerns, including the ability for delegates to dial into meetings via telephone.

[93] Mr Saunders believed that a scope order would not address the inefficiencies referred to by the Alliance Unions and that it would actually have the opposite effect. Delegates would be attending meetings to discuss topics about which they have no knowledge. This will require explanation, thereby prolonging the meetings unnecessarily. In addition, there would be a dilution of relevant employees’ views by the views of employees not affected by particular issues. There would be a single vote on all conditions, rather than two votes on the conditions that are specific to the respective groups.

[94] In relation to Mr Thompson’s evidence, in which he suggested that the Alliance Unions would ensure that minority members’ views are not ‘steamrolled,’ Mr Saunders said that this assurance did nothing to appease Qantas’ industrial requirements for base maintenance. In circumstances in which Qantas might require flexibility or unique terms for base maintenance, the Alliance Unions would only need to convince the National body of employees (or a portion of them) to veto the necessary change, or result in a potential scenario where a majority of employees opposed the change, despite the Alliance Unions’ preferred views.

[95] Mr Saunders also proffered a view that joint bargaining discussions in relation to the obligations or benefits under either Agreement may create tension between groups of representatives from different areas of maintenance. Tensions and discussions about the equality of obligations and benefits across different areas of maintenance is neither helpful, nor efficient in the bargaining process.

[96] Mr Saunders reaffirmed that Qantas’ operational needs, particularly in relation to flexibility in base maintenance, will not change. Accordingly, Qantas’ bargaining position in relation to those needs is unlikely to change. In this context, a forced joinder of bargaining meetings will not result in a change to Qantas’ approach to bargaining (i.e. Qantas will still have claims specific to base maintenance as against non-base maintenance). However, it will draw negotiations out or become unnecessarily lengthy when those needs are required to be discussed and negotiated with a group of National maintenance delegates who are not familiar with base maintenance.

[97] Mr Saunders set out some of the difficulties joint bargaining would have in relation to two key issues for base maintenance: the use of contractors to manage ‘peaks and troughs’ and rostering flexibility. Employees in intermediate maintenance, line maintenance and CMS would likely consider the prospect of a Flexibank to be an attractive option. However, Qantas could not offer the same entitlements and flexibilities to employees outside of base maintenance. If Qantas was unable to reach an agreement that included the flexibilities necessary for base maintenance to remain competitive, it would jeopardise the viability of the operation and the security of the Brisbane employees’ employment. He expected there would be strong resistance from National Mainline delegates to the use of contractors in general maintenance. The concern over ‘creep’ and how these arrangements could be effectively ‘siloed’ would become significant ‘blockers’ to agreement.

[98] Mr Saunders said that he had been informed by the Qantas management responsible for the particular areas of maintenance (Chris Tobin, John Walker, Paul Crawford and Cameron Hoey) that Qantas maintenance employees are not particularly concerned with the scope of the agreement. In addition, he also said he had been informed that employees are frustrated by the scope dispute and would rather progress to discussions about their future terms and conditions.

[99] In relation to the Alliance Unions’ evidence that employees ‘move between the two areas as the need arises,’ Mr Saunders said this is not accurate. In fact, this is limited to discreet occasions in which these transitions occur. Examples are where employees do so in order to satisfy the specific training needs of a general maintenance employee; to allow a base maintenance employee to expand their maintenance experience; or to allow an apprentice to gain experience completing work in another area of maintenance. This program is entirely discretionary and is intended to expand the maintenance knowledge and experience of base maintenance employees. It is not required operationally and could be terminated at any time. The use of apprentices out of base maintenance is not required operationally and could be discontinued by Qantas if deemed necessary.

[100] In cross-examination, Mr Saunders agreed that theoretically all of the content of the two Agreements could be incorporated into one agreement, but the Company’s concerns have been about the bargaining process, not necessarily the end form of that process.

[101] Mr Saunders was closely questioned as to the format of the meetings of 8 December 2016. However, he believed a process whereby all the delegates ‘caucused’ in the morning, then with two meetings sequentially, meant that participants in the second meeting would need to be released four to five hours earlier to attend the caucus and then be unproductive until the second meeting.

[102] Mr Saunders agreed that in the Qantas letter of 13 October 2016, it was proposed to have a meeting on 27 October to ‘commence bargaining for new enterprise agreements.’ He agreed the 27 October meeting was the first formal bargaining meeting, but believed it was merely a ‘meet and greet’ session.

[103] Mr Saunders specifically recalled that in the meetings of 8 December, Mr Thompson had expressly said that the Alliance Unions were presenting a list of issues (numbering 32) that required further information from Qantas before the log of claims could be formalised. Each meeting lasted one and a half hours to two hours.

[104] In answer to questions from me, Mr Saunders said that Qantas was in the process of proposing its own log of claims, some of which will be already known to the Unions. However, the document had not been finalised to this point. He believed that out of 10, he rated Qantas’ awareness of what the Alliance Unions are seeking as a three and the same rating for Qantas’ ability to properly respond to those matters.

Mr Paul Crawford

[105] Mr Crawford is employed as the Manager of Qantas’ Base Maintenance in Brisbane and has been in the role since November 2012. He described his duties as including:

[106] Mr Crawford’s evidence was largely consistent with that of Mr Saunders’. However, he provided more context around the differences between the work performed by base maintenance compared with general maintenance employees, which he categorised into the following areas:

[107] Mr Crawford provided a breakdown chart of how many employees work in each area as follows:

 

Brisbane

Sydney

Melbourne

Adelaide

Perth

Total

Base Employees

245

0

0

0

0

245

General Maintenance Employees

Intermediate Maintenance

0

324

0

0

0

324

Line Maintenance

8

42

60

5

29

144

CMS

0

0

100

0

0

100

Apprentices (being covered by the Base Maintenance Agreement or the General Maintenance Agreement subject to ‘base’ work area)

75

6

0

0

0

81

Total

328

372

160

5

29

894

[108] Mr Crawford described the gradual closing of Qantas’ base maintenance facilities and relocation to Brisbane. In May 2012, Qantas announced that, for operational reasons, it would close its Tullamarine base maintenance facility. In September 2012, eligible employees previously employed at Tullamarine were redeployed to Brisbane. To the best of his knowledge, all employees who expressed a willingness to relocate to Brisbane were offered the opportunity to do so. In November 2013, Qantas announced that, again for operational reasons, it would close its Avalon base maintenance facility. In April 2014, eligible employees, previously employed at Avalon, were redeployed to Brisbane. From this time, Brisbane became the only location for Qantas’ base maintenance work. The reasons for the closures included the following:

[109] Mr Crawford detailed some of the regulatory requirements which surround maintenance work performed by Qantas. Qantas’ internal compliance is set out in the Qantas MOE. Adherence to the Qantas MOE ensures compliance with the strict industry regulations enforced by CASA. In particular, such work is subject to the Civil Aviation Safety Regulations (1998) (‘CASA Regulations’). The Qantas MOE, contains the technical definition of the work which is approved by CASA to be performed by Qantas’ base maintenance operations. This means that should base maintenance work be performed by any of Qantas’ other maintenance operations or areas, it would breach CASA Regulations and would expose Qantas to fines and other penalties imposed by CASA. The only location Qantas holds an approval from CASA for the conduct of base maintenance work is the Brisbane International Airport. Therefore, if Qantas conducted base maintenance work outside of this area, it would be in breach of CASA regulations.

[110] Mr Crawford rejected the evidence of the Alliance Unions that there is uncertainty in the delineation between base maintenance work and other maintenance work performed by Qantas. While there is a core element of work which is common to all areas, it does not mean the operations are comparable. He reaffirmed there are additional duties and skills specific to base maintenance. In the rare circumstances that Mainline employees perform work in conjunction with base maintenance employees, that work is comprised of the core set of skills shared between each group. Mainline employees do not perform base maintenance work.

[111] It was Mr Crawford’s evidence that all base maintenance work is undertaken in Brisbane. Some line maintenance is also undertaken in Brisbane, however this work is undertaken at a distinct location that is approximately 20 – 30 minutes (by car) from the base maintenance facility. Base maintenance employees in Brisbane rarely have any interaction with the line maintenance employees. This is because their work is unrelated to the work performed by line maintenance employees. Interaction would only occur in circumstances such as:

[112] Mr Crawford stated that the performance of base maintenance work requires specific facilities. Primarily, the work requires the hangar to be fitted with specific ‘docking’ that allows the employees easy access to all parts of the aircraft to perform their duties. The ‘docking’ resembles scaffolding which surrounds the aircraft. The performance of line maintenance and intermediate maintenance does not require the same infrastructure (‘docking’) as base maintenance. Some intermediate maintenance is performed with ‘docking’ in Sydney. However, this is merely because the original ‘docking’ remains from a previous era when base maintenance was performed in Sydney.

[113] Mr Crawford said that the nature of base maintenance work, requires employees to hold a greater number of qualifications. For example, 52% of base maintenance employees hold additional certification to perform work in confined spaces, as opposed to 23% of Mainline employees. Base maintenance employees are regularly required to perform work in a confined space, such as the opening of a fuel tank to perform inspection and repairs, which is planned work within base maintenance. In contrast, such a requirement would be rare for a Mainline employee and would not constitute planned work.

[114] Mr Crawford estimated that for an AME trained in line maintenance, an addition of six to twelve months of additional ‘on the job training’ would be necessary to achieve full competency as a base maintenance employee. Similarly, he estimated that for an AME trained to competency in base maintenance, two to three months of additional training would be required to achieve full competency in line maintenance. He reasoned that the difference is because base maintenance employees usually have more in-depth knowledge of maintenance checks, and the nature of the skills and duties are still very different between the two different types of maintenance.

[115] Mr Crawford also described how base maintenance work is only carried out by Qantas on three of its aircraft - the Boeing 737, 767 and the Airbus A330. Base maintenance is carried out overseas on its Boeing 747s and Airbus A380s, for economic reasons.

[116] Mr Crawford described the duties involved with intermediate maintenance. It involves the regular, intermediate level of checks and repairs required to be performed on an aircraft. This work requires the monitoring of an aircraft’s condition and maintenance repairs to particular parts of the aircraft. Intermediate maintenance is less significant than base maintenance, but more significant than line maintenance. Examples of tasks undertaken in intermediate maintenance are:

[117] The average duration of a single task undertaken by intermediate maintenance is two to three days. It is all performed in Sydney. He described how it operates on an ‘extended hours’ basis, meaning it runs on a 24 hour, seven days a week basis. Mr Crawford also said that intermediate maintenance requires work of a wider range than base maintenance (the Airbus A380 and A330, and Boeing 747 and 737s fleet).

[118] Mr Crawford said line maintenance is the most common maintenance undertaken by Qantas. It is primarily comprised of two elements:

[119] The Qantas MOE provides the following details of the scope of maintenance services performed by line maintenance:

Line maintenance is the least onerous aircraft maintenance that is undertaken by any of the Qantas maintenance areas and is focused on minimising turnaround time for aircraft at each airport. Mr Crawford said that it does not take an extended period of time to do these duties. It is intended to be completed in the scheduled turnaround time of an aircraft at each airport, as well as overnight before an aircraft’s first flight the next day. Line maintenance is performed by Qantas at each of its major domestic and international terminals in Australia.

[120] In regard to qualifications, Mr Crawford said that employees employed in line maintenance are able to obtain a ‘Category A Licence’ which is additional to their qualifications as an AME. This qualification allows a line maintenance employee to certify particular maintenance work that would otherwise require certification from a LAME. However, the additional qualification provided by a ‘Category A Licence’ is expressly limited to line maintenance and is not applicable to base maintenance work. Given the more complex and technical nature of base maintenance, the CASA Regulations do not allow for the certification of base maintenance work by a Category A Licence holder.

[121] Mr Crawford described CMS as maintenance carried out on independent parts of an aircraft that have been detached from the aircraft and transported to a separate maintenance workshop for repair. The duration of work is determined on a case by case basis. Time restrictions do not apply as they do in other areas of maintenance. CMS work is only performed in Melbourne, with some exceptions, in which case a temporary workshop can be set up at a different port.

[122] Mr Crawford described how apprentices ‘rotate’ through the different areas of maintenance. He agreed that a rotation through base maintenance is necessary in order for them to complete their apprenticeship.

[123] Mr Crawford responded to the evidence of Mr Wilcox and Mr Corrie regarding reconfiguration projects being performed by base maintenance, intermediate maintenance and line maintenance. While base maintenance does perform reconfiguration projects, it is not correct to suggest that this means base maintenance work is performed by intermediate maintenance employees or line maintenance employees. Reconfiguration projects are, essentially superficial or minor work that is required to change the appearance, layout or passenger features of an aircraft. This work is not base maintenance work.

[124] Mr Crawford’s evidence was that the rostering flexibility (which is described by Mr Saunders above) is required by Qantas’ base maintenance facilities and these flexibilities are not required to the same extent in other Qantas maintenance facilities. His reasons for this are largely consistent with those of Mr Saunders and I do not repeat them.

[125] In regards to the Flexibank system (also described by Mr Saunders above) Mr Crawford deposed that it is critical to the future efficient operations of base maintenance in Brisbane. Again, his reasons were largely consistent with Mr Saunders’ evidence.

[126] Mr Crawford described the market competition which applies uniquely to base maintenance. Due to its labour intensive requirements, competitor Maintenance Repair Organisations with lower labour costs can offer significantly lower prices for the performance of base maintenance work. The fact that Qantas performs its own base maintenance work is entirely unique to Qantas. All of its competitors have contracted the performance of their base maintenance work offshore. In order to justify its viability and sustainability, Qantas needs to ensure it is superior in regards to factors other than costs, such as efficiency, reliability and turnaround times. This requires maximum flexibility. It is necessary for base maintenance to:

[127] In respect to the use of contractors, Mr Crawford said base maintenance is the only maintenance area within Qantas that has the ability to successfully implement and utilise a contractor workforce in order to manage ‘peaks and troughs’ in workflow. It would be far more difficult to reach and maintain an agreeable solution in this regard if base maintenance employees were engaged under the Mainline Agreement.

[128] In regard to third party maintenance, Mr Crawford said that while Qantas has not undertaken any base maintenance work for a third party in many years, it had recently entered into an agreement with Hawaiian Airlines to do some of its base maintenance. During these negotiations, Qantas was able to successfully show that base maintenance employees could achieve the flexibility and independence sought by Hawaiian Airlines because of their own unique enterprise agreement.

[129] In oral evidence, Mr Crawford responded to Mr Corrie’s evidence that base maintenance employees are engaged in ‘one-day checks.’ He conceded they were, but said that it represented a fraction of their annual work of around 0.5 per cent and occurs when the aircraft is on the ground ‘naturally’ for the day.

[130] Mr Crawford described the additional licensing requirements (C-Licence) for LAMEs which is specific to base maintenance due to complexities relating to checking of the aircraft before its release to service. He agreed that a single national Agreement for LAMEs is not a hindrance to obtaining the C Licence.

[131] Mr Crawford agreed that the MOE is not a fixed document, but to change it is an ‘extremely complex task,’ involving an application to CASA and thorough auditing by the Regulator. It involves the people, their qualifications, the facilities, the training and the procedures and process. The exercise can take six months and can cost millions of dollars.

[132] Mr Crawford confirmed that approximately 99% of the Brisbane based maintenance work is on the 737 and the A330 aircraft, involving around 15,000 pieces of tooling to support the ‘deep’ level of maintenance, compared to around 10,000 pieces of tooling in other line maintenance locations servicing the entire fleet.

[133] Mr Crawford emphasised that having a local agreement with its employees exhibiting significant flexibilities is a very strong selling point in broadening Brisbane’s base maintenance operations.

[134] In cross-examination, Mr Crawford was taken to the Qantas MOE, which included amendments since May 2013 reflecting the Regulator’s requirements when new aircraft are introduced or changes to maintenance are necessary. Mr Crawford agreed the document defined line maintenance and base maintenance, but did not refer to ‘intermediate maintenance.’ Mr Crawford acknowledged that while he had not heard LAMEs use the expression, it is an industry term used to describe the level of maintenance that sits between line and base maintenance. He relied on the second and third dot points in the third box of the chart below at page 47 of the MOE which reads in full:

Details of the Scope of Maintenance Services under the A1 Rating

Base Maintenance (B)

CASR MOS Part 145.A.1

    ● Base Maintenance ‘C’ Check and above including modifications, airworthiness directives and service bulletin inspections, cabin reconfigurations, structural repairs, overhaul, rigging, testing and painting.
    ● Support shop activities including, NDT, welding, machining, sheet and composite repair, maintenance of removed aircraft assemblies such as seat, galley, toilet modules other monuments and flying control surfaces for re-fitment to the same aircraft the items were removed from.

Line Maintenance (L)

CASR MOS Part

145.A.75 (c)

    ● Trouble shooting and defect rectification;
    ● Component replacement with use of external test equipment if required.

    ● Scheduled maintenance and/or checks including visual inspections that will detect obvious unsatisfactory conditions/discrepancies but do not require extensive in depth inspection.

    ● Minor repairs and modifications which do not require extensive disassembly and can be accomplished by simple means.

    ● The provision of maintenance services in accordance with progressive type programs including ‘A’ Checks and packaged ‘C’ Checks and airworthiness directives and service bulletin inspections when able to be accomplished in a Line Maintenance environment.

Additional Scope

    ● Quality & Safety – AMS may grant approval for certification by a QE – AMS engineer at a location not listed above in accordance with section 1.7.7 of this MOE. (CASR MOS Part 145.A.75-2)

    ● Sydney Aircraft Maintenance (SAM) has the Competency, Tooling, Facilities to undertake a greater level of maintenance for aircraft approved under the A1 Rating and additionally includes the capability for; full back-shop support (Composites/ Sheet Metal/Paint/Aircraft Furnishings/Tubes), complex repairs, cabin maintenance, FITCOM, NDT, major repairs, avionic system maintenance including IFE systems, aircraft shoring, jacking, weighing, modifications, and reconfigurations.

    ● This excludes the performance of Aircraft Check Packages designed for “BM” level completion. (My emphasis)

SUBMISSIONS

For the Alliance Unions

[135] In opening, Mr Nguyen noted the statutory requirements, set out in s 238(4) of the Act which Qantas had agreed to. He then identified the matters which remain in dispute being:

[136] Before addressing these matters, Mr Nguyen submitted that in deciding this application the Commission must take into account the most current information which is available. This must include what happened in the meetings which took place on 8 December 2016; see: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] 162 CLR 24 and Kantfield Pty Ltd v Australian Workers’ Union, the [2016] FWCFB 8372. It was argued that these decisions establish that in consideration of the scope order, the Commission must take account of all the circumstances relevant at that point of time. The issue on 8 December 2016 was not a refusal of the Alliance Unions to meet, but a rejection of the format of the meetings. This does not demonstrate that the Alliance Unions were acting in bad faith. He referred to the evidence that it was Mr Smith who had said on 8 December that ‘it’s (scope) obviously a threshold issue’ and it was ‘pointless to hold any further meetings until the scope order application was heard and determined.’

[137] Mr Nguyen relied on MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [2010] FWAFB 6519 (‘MSS Security v LHMU’) as authority for the proposition that scope does not necessarily have to be resolved at the outset. It may continue to be a matter of disagreement after the NOERR have been issued to a wider cohort of employees and bargaining continues. Mr Nguyen submitted that Qantas is refusing to meet according to the broader scope, without seeking a scope order itself and is demanding the Alliance Unions meet according to a narrower scope. The position advanced by Mr Thompson, in correspondence of 16 September 2016 to Qantas, was for the broader group of employees to bargain from the commencement of bargaining, until the scope was either negotiated or subject to an order of the Commission. He put that Qantas had agreed to commence bargaining in relation to the broader scope, but refused to negotiate any further. In fact, it was Qantas which was not meeting good faith bargaining requirements.

[138] Mr Nguyen also rejected the submission that the Alliance Unions were not meeting good faith bargaining requirements because they had not considered Qantas’ proposed scope. This was contrary to the evidence, which disclosed that the Alliance Unions had actually put why they opposed Qantas’ proposed scope. These reasons were that the Alliance Unions’ claims were identical; Brisbane employees felt like ‘second class citizens’ because information was being denied to them, all employees have shared interests in future maintenance requirements; and the rotation of employees between line and heavy maintenance, particularly apprentices.

[139] Mr Nguyen said that the Alliance Unions:

[140] Mr Nguyen put that if Qantas is of a mind of seeking its own scope order, then the Alliance Unions would seek to put further submissions in opposition to such an application. Mr Nguyen added that the Alliance Unions put no submissions as to whether or not Qantas is meeting good faith bargaining requirements; see: United Firefighters' Union of Australia v Metropolitan Fire & Emergency Services Board; Metropolitan Fire & Emergency Services Board v United Firefighters' Union of Australia [2010] FWAFB 3009 (‘UFU v MFESB’).

[141] As to s 238(4)(b) of the Act, Mr Nguyen referred to the objects of the Act (s 3) which underpins a requirement for employees to have access to collective bargaining to equalise the bargaining power imbalance that exists between an employee and employer. The views of the employees who wish to bargain together with the employer was a relevant consideration going to fair bargaining. He put that the Brisbane employees feel that once agreement has been first reached for the Mainline Agreement, it is impossible for them to move Qantas on the decisions which Qantas has already made (the ‘poor cousins’; see: Mr Corrie’s evidence). Mr Nguyen claimed that Qantas have withheld information from groups of employees, although such decisions affect the long term job security of all employees.

[142] Mr Nguyen submitted that there was no history of conflict between the two groups of employees, as was evidenced in the UFU v MFESB case. There was evidence that the parties have always been able to discuss and agree on area specific matters which were rarely in contest.

[143] Mr Nguyen relied on the decision in Royal District Nursing v Health Services Union and another [2012] 218 IR 276 (Royal District Nursing v HSU), which considered a similar set of facts as here, although in reverse. In that case, the Unions wanted two agreements and the employer one. Similarly, the Commission should reject arguments that a larger cohort of employees would overwhelm the smaller cohort, who it was claimed would lose their voice. Mr Nguyen rejected Qantas’ submission that the evidence of historical bargaining does not point to any unfairness. He said the evidence of unfairness was that a significant number of items end up exactly the same in both agreements. In any event, there is a history of a National process for formulating logs of claims and National delegates’ meetings. In addition, the pattern of the Mainline Agreement being imposed on Brisbane employees demonstrates a legitimate concern that they are excluded from the forum where real decisions are being made.

[144] Mr Nguyen identified a number of inefficiencies in the historical approach to bargaining, such as a significant number of items that are exactly the same, duplication of resources and time and costs devoted to two meetings about the same matters. Mr Nguyen said that there is clear evidence of the employee preference for a single agreement, as disclosed by petitions signed by a majority of employees at all locations.

[145] Mr Nguyen further submitted that Qantas had not demonstrated that a single agreement would be a hindrance to any particular commercial and/or operational peculiarities relevant to Brisbane. Nor is there any barrier to Qantas having separate financial reporting units in having a single agreement. He pointed out the two Agreements have the same wage rates and classification structure and there is no issue if Qantas seeks to amend its existing MOE. He said that Qantas’ submission that future base maintenance requirements are likely to be different in terms of entitlements and conditions, is simply speculation, not evidence. In any event, any differences can, and have been negotiated with one set of negotiators.

[146] Mr Nguyen submitted that the history of the two Agreements is not necessarily decisive. The evidence of duplication, inefficiency and unfairness has emerged over time. Mr Nguyen addressed Qantas’ emphasis on the ‘status quo’ by reliance on Transport Workers' Union of Australia v Chubb Security Services Limited [2012] FWA 2226 (‘TWU v Chubb’), Finance Sector Union of Australia v BWA Group Services Pty Ltd [2014] FWC 919 (‘FSU v BWA’) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia-Electrical, Energy and Services Division - Tasmanian Divisional Branch v Tasmanian Water and Sewerage Corporation (Southern Region) Pty Ltd T/A Southern Water [2015] FWC 4233 (‘Tasmanian Water’).

[147] Mr Nguyen put that unlike the facts in FSU v BWA, there was no evidence here that the industrial practice would be disturbed and an employee petition in the FSU v BWA case was only 34% (as opposed to the petitions here). The later Tasmanian Water case, does not stand for a proposition that ‘status quo’ should be given some special priority.

For Qantas

[148] Mr Follett opened his oral submissions by putting that the Alliance Union’s application:

[149] Mr Follett developed these propositions by putting that none of the four matters set out in s 238(4) of the Act had been satisfied by the Alliance Unions. Mr Follett noted the context of the application, in which to date, there had been only one meeting, where no bargaining positions were exchanged and only three concerns were raised. These were:

These matters became the focus of the application and the Alliance Unions’ case. Mr Follett submitted that the first two matters would never justify a scope order and the third was wrong in fact, and in principle. The fact is, so Mr Follett contended, there has been no material bargaining. Although the imperative is on scope being part of bargaining, scope order applications usually arise when bargaining has taken place over some time and where bargaining has broken down or has become inefficient or unfair; see: BRB Modular Pty Ltd v "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) [2015] FWCFB 1440 (‘BRB Modular v AMWU’)  and Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU) and others v Shinagawa Refractories Australasia Pty Ltd [2011] FWA 5935 (‘Shinagawa’). In this case, nothing has happened.

[150] In respect to the first criterion in s 238(4), Mr Follett put that the Commission would not be satisfied that the Alliance Unions have met the good faith bargaining requirements for two reasons. Firstly, there has been no substantive bargaining. Neither party has exchanged a ‘log of claims.’ The 8 December 2016 meetings involved information sessions concerning Qantas’ business imperatives and financial position. The Alliance Unions had raised some issues, but required further information. Mr Follett said that while it was not suggested that this was bad faith bargaining – it was just no bargaining. Secondly, the good faith bargaining requirements are connected to the proposed notification times for enterprise agreements for which two NOERRs had been issued in respect to the two existing Agreements. Mr Follett submitted that the applicants here must bargain in good faith for the proposed agreements for which there has been a notification time and that can only relate to the two current Agreements. The Alliance Union’s position is that they would not bargain at all under the structure proposed, until the scope order is determined. He said the Alliance Unions can pursue scope, either through bargaining or this order, but they cannot refuse to meet or provide information in a process which is attached to two Agreements which remain in force.

[151] As to issues of fairness and efficiency, Mr Follett submitted the Alliance Unions had failed to demonstrate how the scope order would promote efficiency or fairness. At best, the only evidence as to alleged inefficiencies and views about unfairness to the Brisbane employees, is entirely speculative; see: FSU v BWA. Just because there were two meetings in which the Alliance Unions presented the same issues says nothing about what was fair, unfair or inefficient. There was no evidence to support the proposition that simply having two meetings means it is inefficient. The cases the Alliance Unions relied on were clearly distinguishable in that the parties in the FSU v BWA and the Tasmanian Water cases could demonstrate a series of meetings in which inefficiencies and unfairness were identified. Not so here, he added.

[152] Mr Follett put that moreover, the history of bargaining disclosed no evidence of:

[153] Mr Follett said that if it was true that the Brisbane employees now felt like ‘poor cousins,’ the Alliance Unions ‘have clearly not done a damn thing about it,’ in 12 years and four rounds of bargaining under the status quo. Mr Follett referred to Mr Thompson’s evidence in which he had insisted on separate bargaining on two separate logs of claims. Mr Follett asked rhetorically ‘so what has changed?’ Mr Follett added that the Commission does not know:

[154] In summary, Mr Follett put that all the Alliance Unions say is that there may be problems, but offer no evidence to justify their assertions. The onus is not on Qantas to prove the case to the contrary.

[155] Mr Follett relied on FSU v BWU to demonstrate the differences between line maintenance, intermediate maintenance and base maintenance was a relevant factor in this case. Mr Follett relied on The Association of Professional Engineers, Scientists and Managers, Australia v Australian Red Cross Blood Service and others [2011] FWA 2914 (‘APESMA v Red Cross’) as raising similar submissions which Qantas make in respect to different groups of employees concerns being able to be met in a parallel process, with a proper focus on their concerns.

[156] In respect to inconvenience and resourcing, Mr Follett rejected the claim that one meeting will be more efficient and less time consuming; see: Tasmanian Water. Mr Follett pointed to the inconsistency in the Alliance Union’s arguments when their answer to the logistical issue is to have separate sub-group meetings and separate caucuses on either site specific or operationally specific matters. This is exactly what has occurred in the past as the evidence of Mr Wilcox and Mr Corrie demonstrated. Mr Follett noted the slightly different positions in the evidence of the three Union witnesses as to the use of contractors and said there is nothing consistent about their message (on that issue).

[157] As to issues of fairness, Mr Follett submitted that there ‘was not a jot of evidence’ to support the proposition that Brisbane employees do not get an opportunity to bargain, because by the time their turn comes, Qantas’ position is set. He pointed out that Brisbane employees have never raised this issue and in fact, Mr Thompson’s evidence is to the contrary, in that Brisbane employees make a ‘judgement call’ as to whether or not they expect to be able to get anything more from Qantas or just leave it. The truth is that the Brisbane employees have never tested the proposition. Moreover, Mr Follett put that such a proposition is entirely inconsistent with the Alliance Unions’ own submissions as having a consensus of a single log of claims. The Alliance Unions’ own submissions indicate they are not going to ask for anything different. He said, ‘yet there is unfairness because Qantas wasn’t giving us something we’ve never asked for.’

[158] Mr Follett added that it was an inescapable conclusion that whatever is negotiated and supported by the majority at all locations can only result in there being a prospect of the Brisbane employees being outvoted. As it presently stands, the Brisbane employees cannot have terms and conditions imposed on them by the majority. That is, the current position cannot be unfair, whereas if they could be outvoted, they might well claim unfairness. He observed it is usually the case that specific groups of employees seek to be ‘scoped out’, rather that ‘scoped in’ for these very reasons (of being outvoted by the majority).

[159] Mr Follett said there was no evidence that Qantas had not provided all relevant information to the Brisbane employees. In any event, such a complaint was a classic good faith bargaining complaint which should be dealt with under those provisions, and not through a scope order application; see: BRB Modular v AMWU at [39] and 52 and National Union of Workers v Linfox Australia Pty Ltd [2013] FWC 9851 (‘NUW v Linfox’) at 61.

[160] In dealing with ss 4 of s 238 in respect to reasonableness, Mr Follett submitted that the Alliance Unions need to establish ‘good’ reasons why the Commission should inject itself into the bargaining process where the scope of an agreement is ordinarily determined by the parties themselves in bargaining. These reasons must be ‘objectively justified’; see: BRB Modular v AMWU. Mr Follett added that scope orders are usually made where there are serious problems with bargaining, such as evidence on a historical basis of a process which had not, or is not working. There needs to be a real and significant reason for disturbing the status quo and not a reason which is speculative, hypothetical or argumentative. A scope order in this case is not objectively justified, where after 12 years and multiple bargaining rounds, no problems in bargaining had been disclosed; see: NUW v Linfox, Tasmanian Water and Shinagawa.

[161] Mr Follett highlighted the following differences justifying the two agreements:

Mr Thompson’s evidence disclosed that nothing has changed since the Alliance Unions understood and accepted these differences and agreed to them. Qantas also relied on Mr Saunders’ statement at paras 32-57.

[162] Mr Follett engaged in his own speculation in that reaching a common agreement on every issue, across each maintenance area, with every Union and group of employees, is likely to be more difficult and less efficient than negotiating for two agreements. Mr Follett submitted that the petitions of employees’ preference for a single agreement were unreliable. He queried why employees would have a particular concern about whether their terms and conditions are in one agreement or two. In any event, it is apparent that employees signed the petition simply because they were asked to. What the Alliance Unions did not properly disclose was the false propaganda material attached to the petitions, with questions such as ‘do you support fair bargaining?’ and advising employees that Qantas had walked away from agreed processes in the Commission. It is plain that employees did not understand what is actually being proposed and why. In any event, it is evident that the Alliance Unions are simply seeking to increase their bargaining leverage by weight of numbers, as Mr Corrie’s evidence disclosed. This is not a valid reason to seek a scope order; see: TWU v Chubb.

[163] In reply, Mr Nguyen referred to Mr Thompson’s evidence concerning a Qantas proposal to include an RDO flexibility provision for Melbourne in which the Melbourne employees were consulted and the change subsequently became part of the Mainline Agreement. This was to ensure that the Melbourne employees were not outvoted and all the Mainline employees understood and were comfortable with the change, even though it did not directly affect them.

CONSIDERATION

Relevant principles and authorities

[164] Both parties provided me with a comprehensive portfolio of Commission Full Bench and single member decisions (including relying on the same decisions to support their respective arguments), which are relevant to the considerations which the Commission is to take into account when determining whether to grant a scope order application.

[165] Perhaps a useful starting point is the general approach framed by the Full Bench in BRB Modular v AMWU in the following passage found at paras 53-54:

[166] A number of other general principles have been developed in the body of jurisprudence dealing with scope order applications. These include the following:

I turn now to the specifics of this case.

Is the scope order application premature?

[167] While there is some force to Mr Follett’s submission that scope is a matter for bargaining and bargaining has not materially commenced, this application is premature, I am satisfied that there is a fundamental stalemate which is hampering the progression of the negotiations and will remain the ‘elephant in the room’ until some clarity is given about scope by the Commission; see: Shinagawa at 26. Indeed, Mr Thompson’s evidence was that Mr Smith said at the 8 December meetings, words to the effect of:

I do not apprehend there to be any challenge to Mr Thompson’s evidence as to this conversation. I am also mindful of and adopt the practical comments of Cambridge C, in Australian Rail, Tram and Bus Industry Union v Australian Rail Track Corporation (ARTC) [2012] FWA 6329, where at para 69 the Commissioner said:

[168] It would be rather amusing, if it was not so significant to the employees who are looking to improve their wages and conditions in a new agreement, that the parties cannot even agree on whether the 8 December meetings were simply ‘meet and greets’ or the commencement of bargaining. Moreover, the parties cannot even agree whether the matters raised by the Alliance Unions on 8 December were a ‘log of claims’ or, as Qantas submits, a ‘list of issues.’

[169] The imperative on the Commission, as set out in the objects of the Act, is to promote the effective and efficient conduct of bargaining. In my view, it was what the legislature had in mind when it enacted the bargaining provisions in Part 2-4 of the Act and, in particular, set out the criteria for the Commission’s consideration in s 238(4), to achieve the fair and efficient conduct of bargaining. In my assessment, these sideline skirmishes and semantic ‘argy bargie’ has to end. The parties should simply ‘get on with the main game’ – bargaining for new industrial instruments. To the extent that a determination of the stalemate as to scope will focus the parties on the ‘main game’ then that should be resolved now, one way or another. I intend to do so.

Have the bargaining representatives (the Alliance Unions) met and are meeting the good faith bargaining requirements? (Section 238(4)(a) of the Act)

[170] In my experience, bargaining with a major employer such as Qantas, invariably begins with a preliminary meeting in which the employer sets out its financial and business results and forecasts, outlines its strategies and future operational requirements, identifies threats and opportunities for the business and details (where possible) workforce numbers, training requirements, apprentice numbers, etc. The Unions would table or outline their log of claims, identify principles and priorities for a new agreement and seek further information from the employer. While I do not know the exact details, this would seem to be precisely what took place in the 8 December 2016 meetings. It was conventional and unremarkable. Moreover, it is what I envisaged when I encouraged the parties on 1 December 2016 during a conference between the parties, to kick start their negotiations as they have traditionally commenced them, but on a ‘without prejudice’ basis as to their disagreement concerning scope.

[171] Moreover, I am satisfied that Qantas accepts that bargaining was to commence, in the usual way, when Mr Saunders said in a letter to Mr Thompson dated 13 October 2016:

That meeting occurred. In addition, I note that two earlier meetings on 31 May and 1 June were described as ‘training and bargaining preparation sessions.’

[172] In light of the correspondence between the parties and the meetings held in the lead up to 8 December 2016, I do not accept that bargaining has not commenced, or that there has been no bargaining and therefore this application is premature. If you accept (as one must) that scope is a matter for bargaining, then the discussion of scope in the meetings of 27 October and 8 December 2016, then logically these meetings were bargaining meetings. On any objective analysis, the Alliance Unions had considered the scope of the agreement/s, responded to Qantas with their views and simply do not agree with them. Thus, there is very little more to bargain about, in respect to that limited, but significant issue.

[173] In my view, this disagreement tends to distract from the proper focus of whether bargaining will proceed more efficiently, effectively and fairly if the scope order is made in the wider context of all the criteria set out at s 238(4) of the Act. Of course, in the 8 December meetings, there was not the ‘sleeves rolled up,’ robust bargaining over specific terms and conditions for a new agreement/s. But, in my view, that does not lead to a conclusion that bargaining had not commenced. I am satisfied, that it has already commenced, some time earlier. Given this finding and Qantas’ concession that it makes no allegations of ‘bad faith’ bargaining by the Alliance Unions, I am further satisfied that s 238(4)(a) has been met.

Will the making of the scope order promote the fair and efficient conduct of bargaining? (Section 238(4)(b) of the Act)

[174] The Alliance Unions submit the proposition of unfairness on grounds that as Brisbane employees do not get an opportunity to bargain because the Mainline Agreement is already negotiated, they feel like the ‘poor cousins’ or ‘second class citizens.’ In my opinion, this proposition is dripping with a heavy pall of inconsistency and counterintuity. This is so for the following reasons:

[175] The Alliance Unions submitted that the recent decision of Qantas to deny information to the Brisbane employees which Qantas believed was only relevant to the Mainline employees, was an obvious example of unfairness occasioned upon the Brisbane employees. This submission has no substance for the following reasons:

Views of employees

[176] It is incumbent on the Commission to consider the views of the employees as expressed in any evidence as to their views concerning the scope application. However, it must steadily be borne in mind that these views attract no greater weight, or more significance, than any other of the factors to be considered in s 238(4) of the Act; see para 166(3) above.

[177] The Alliance Unions relied on the petitions of employees and the evidence of Mr Corrie, particularly, as demonstrating the overwhelming support from both Brisbane and Mainline employees for a single agreement and joint negotiations.

[178] While the wording of the petitions is relatively neutral, the accompanying material was most assuredly not objective. Relying on loaded, emotive statements and propaganda material such as ‘the Alliance Unions are seeking to ensure a fair go and bargaining process,’ seems to me was designed to ensure a predetermined outcome. The petitions are therefore not only misleading, but the antithesis of the concept of objective justification. Essentially asking employees if they support ‘a fair go and bargaining process’ has the same, limited probative value as conducting a survey on the relationship between a parent and their children, by asking ‘do you love your children?’ Secondly, as to Mr Corrie’s evidence of his conversations with his members, there was no evidence of the number of persons he spoke to, what he said or what questions were asked. While I attribute no mala fide intent with Mr Corrie’s consultative exercise, it is not an objectively reliable guide, particularly given the contextual framework circulated by the Unions as just described.

[179] More troubling perhaps is Mr Corrie’s evidence that everyone he spoke to - bar one - supported a single agreement and the majority were also very annoyed about the position taken by the one person who opposed it. This evidence says to me that by not supporting a majority view, and being criticised by your comrades for simply holding that view, that persons understandably not bother to take the risk of alienating your workmates.

[180] Thirdly, if the Union’s evidence, (such as it was), that the overwhelming majority of employees support a single agreement, and that Brisbane employees felt like the ‘poor cousins,’ the ultimate democratic test is whether they support the agreement’s approval, in a secret ballot. If scope is such an important issue for them, the employees can make their views known firmly and decisively in that process. Whether a no vote means a delay in the bargaining, is not the point. If it is such a critical concern, then they will overwhelmingly vote no to approve the Agreement. Simply arguing that the Brisbane employees make a ‘judgement call’ that they will not do any better after the Mainline negotiations are concluded, does not ‘cut it.’ The Alliance Unions have never before tested Qantas’ resolve, or even asked for different terms and conditions; let alone voted against approval of the Brisbane Agreement because they wanted a different outcome.

[181] Having considered the views of the employees, I am of the opinion that even accepting a reasonable majority of the employees may genuinely support a single agreement, this factor does not tip the balance, either way, as to whether the scope order should be made.

[182] For the above reasons, I am not satisfied that the making of the scope order will promote more efficient, effective or fairer bargaining. That finding is sufficient to dismiss the application, but to do justice to the comprehensive opposing arguments put by both Mr Nguyen and Mr Follett, I intend to make finding on the remaining subsection of (4)(d) of s 238 of the Act, (noting that Qantas conceded that s (4)(c) had been satisfied).

Is it reasonable in all the circumstances to make the scope order? (Section 238(4)(d) of the Act)

[183] Of course, the notion of ‘reasonable’ is a broad, not easily definable concept, not least of all where the wide statutory discretion given to the Commission refers to reasonably being in ‘all of the circumstances.’ In my view, many of the matters I have already commented on, touch on questions of reasonableness. They are issues plainly encompassed by the phrase ‘in all the circumstances.’ One particular matter though, is notably apposite in this context; that is, the notion coined by the well known phrase ‘if it ain’t broke, don’t fix it.’ Put another, more elegant way, for a scope order application to succeed which changes a long standing history of untroubled scope framework, then the objective justification for doing so will need to be compelling.

[184] In my view, the Alliance Unions have not made out a case to disturb the ‘status quo’ unarguably reflected in 12 years of history with four rounds of bargaining, without any complaint, let alone pressure over the scope of the Agreements. The highest the evidence gets was little more than aspirational speculation, preferred beliefs or trivial inconvenience. Such matters are not a proper or sound basis to ground the making of a scope order; see: para 166(7) above.

[185] Qantas also identified multiple reasons why it was unreasonable to make the scope order. These were:

[186] Apart from (d) above, these reasons provide a compelling basis for rejecting the scope order application. In doing so, I accept the evidence of Mr Crawford as to the importance of Brisbane’s specific flexibilities and independent different agreement as positive factors going to Brisbane’s base maintenance opportunities for further internal and external work in the future. An order dismissing this application will accompany the publication of this decision. For completeness, it is unnecessary to make the alternative scope order in Qantas’ preferred terms.

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DEPUTY PRESIDENT

Appearances:

Mr M Nguyen for the AMWU;
Ms J Gherjestani for the AWU,
Mr G Noble for the CEPU; and
Mr M Follett of Counsel appeared for Qantas.

Hearing details:

Sydney

2017

February

22.

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