PN1

THE DEPUTY PRESIDENT: Any changes to appearances?

PN2

MR C RIDINGS: Yes, sir, it's Chris Ridings from Adelaide. I'm seeking leave to appear as a paid agent for Babcock to assist Mr Rogers.

PN3

THE DEPUTY PRESIDENT: Any other changes?

PN4

MS R LEIBHABER: If the Commission pleases, Leibhaber, initial R, appearing for the HSU.

PN5

THE DEPUTY PRESIDENT: That's it? Any opposition to permission to appear?

PN6

MR NGUYEN: No, Deputy President. I'll just note as well that we - it's Mr Nguyen in Sydney. We also appear today for the Australian Workers Union.

PN7

THE DEPUTY PRESIDENT: Mr Nguyen. Go on.

PN8

MS N DABARERA: If the Commission pleases, Dabarera, initial N, appearing for United Voice.

PN9

THE DEPUTY PRESIDENT: Thank you. Pursuant to section 596 of the Fair Work Act 2009, permission to appear is granted to enable efficient conduct of proceedings. Now, I've got one question if I could before we - I know you've provided an agreed document which I have somewhere in this pile of material. The question is this, and this is of the applicant. In the original application you indicated that you wanted to vary the Airline Operations Ground Staff Award 2010. Is that your current proposal?

PN10

MR NGUYEN: No, Deputy President, that's not - that's not our proposal. I don't think that ever was our proposal.

PN11

THE DEPUTY PRESIDENT: Well, you said at paragraph 6 of a document dated 12 November 2015, in response to the Commission's statement of 21 October 2015, 2015 FWC 7253, that you wanted to develop a career path for inclusion in the Airline Operations Award. Is that the one you're talking about, and it's under the heading, "New modern award to cover helicopter crew". You see there seem to be a number of awards that are relevant. There's that award, there's the Aircraft Cabin Crew Award which doesn't cover helicopter crew. There's the Air Pilots Award which does cover helicopter pilots. So what is it you're proposing; one of these awards be varied or a new award be made for helicopter crew?

PN12

I mean - just one further point, if that's your proposal you need to justify why you're doing that, why a new award should be made and I also note that it's odd that the aircraft - that the Air Pilots Award includes, I think, helicopter pilots, the Aircraft Cabin Crew Award does not include helicopter pilots and now you're proposing a new award perhaps. So what's the position? Do you understand what I'm saying?

PN13

MR NGUYEN: Yes, our point - - -

PN14

THE DEPUTY PRESIDENT: Do you understand what I'm saying?

PN15

MR NGUYEN: Yes, I understand what you're saying. Yes, the award which we refer to in our submission dated 2017, 20 October, is the Air Cabin Crew Award, but we - our primary position is that there should be a new award created for helicopter aircrew specifically but we do also acknowledge that it may be possible to vary the Aircraft Cabin Crew Award 2010, and we do outline in our submissions why the preference for a new award. In terms of the Air Cabin Crew Award being varied, it's possible for us to present a draft award based on a variation of that award if the Full Bench decides that's the preference.

PN16

THE DEPUTY PRESIDENT: This is your application we're dealing with, right? I understand that what you've said is your primary position is that you want a new award. Your secondary position is that a variation to the Aircraft Cabin Crew Award 2010 is sought. Is that right?

PN17

MR NGUYEN: That's correct, Deputy President.

PN18

THE DEPUTY PRESIDENT: Well, one way of doing this is if you prepare further drafts is to prepare - is to do both, if you want us to look at it. Do you see what I mean?

PN19

MR NGUYEN: I'm not sure what the question is.

PN20

THE DEPUTY PRESIDENT: Well, if you're going to do a - I've got a document dated 4 April 2018 from yourselves, which is a summary of the issues still in dispute, and you say at the end, paragraph 5:

PN21

The AMWU propose to submit a new draft award which incorporates the new terms which are agreed as well as highlighting the terms which are not agreed.

PN22

So are you going to do that in both terms of a new award as well as a variation to the Cabin Crew Award?

PN23

MR NGUYEN: We hadn't proposed to do that, Deputy President. In terms of resources, we'd just proposed to vary the draft award which we had submitted last year on 20 September 2017.

PN24

THE DEPUTY PRESIDENT: Right. To make it crystal clear, your application includes the cabin crew award and a proposed variation of the award. Is that correct?

PN25

MR NGUYEN: The application - well I'm not sure if application is the apt word but there is - we have raised an issue - - -

PN26

THE DEPUTY PRESIDENT: All right, call it your proposal. Your proposal is either a new award or a variation to the Cabin Crew Award. Is that correct?

PN27

MR NGUYEN: That's correct, yes.

PN28

THE DEPUTY PRESIDENT: So you want the Full Bench to proceed on that basis then?

PN29

MR NGUYEN: That's correct and we have outlined the relevant sections regarding (indistinct) the Full Bench should give consideration to, in our submissions.

PN30

THE DEPUTY PRESIDENT: I understand, thanks for that. Sorry, that was the only question I had so go ahead. You're the applicant. Can I call you the applicant?

PN31

MR NGUYEN: Yes, you may, Deputy President. We have outlined in our document which we have lodged today, it's been uploaded online as well (indistinct) the transcript. There's at paragraph 3 the agreed issues between Babcock and the AMWU (indistinct) and also paragraph 3 the issues that are currently in dispute.

PN32

I should also note that there is and I'm sure they'll speak to it, my colleagues will speak to it, there is also (indistinct) dispute about overlapping coverage between the proposed award and the Ambulance and Paramedics Award, which I'm sure my learned colleagues from United Voice and the HSU will speak to as well. I've had some preliminary discussions with Babcock about witnesses. I understand that they don't intend to cross-examine any of our witnesses. We intend to cross-examine both of Babcock's witnesses, we anticipate they should take no more than an hour for each witness. Our closing submissions shouldn't take more than two hours, we anticipate. But I understand that Babcock also has an intention to make a request to provide further evidentiary material in relation to some specific issues arising out of discussions, but I'll let Mr Rogers speak to that. We think that it would take not more than a day for the hearing in the circumstance.

PN33

THE DEPUTY PRESIDENT: How many witnesses do you have?

PN34

MR NGUYEN: Eight witnesses, two of whom have provided two statements.

PN35

THE DEPUTY PRESIDENT: Right, and the employer doesn't want to cross-examine, right.

PN36

MR NGUYEN: That's what I understand but pending if the Commission wishes to call any of them for cross-examination then that would extend the timetable.

PN37

THE DEPUTY PRESIDENT: Well, we're not - well we don't cross-examine I don't think. Your proposal then is this; that within a certain period you will produce a new draft award and then there will be a hearing. So when will you produce a new draft award? I don't mean to be difficult about this but you've said that that's what you're going to do and obviously we need specific proposals.

PN38

MR NGUYEN: Yes, we would request an opportunity to provide one by next week, Deputy President.

PN39

THE DEPUTY PRESIDENT: So close of business next week, right.

PN40

MR NGUYEN: Yes.

PN41

THE DEPUTY PRESIDENT: Terrific, thanks. Nothing else from you, that's it?

PN42

MR NGUYEN: That's it, unless there's anything further from yourself, Deputy President.

PN43

THE DEPUTY PRESIDENT: No, no, thank you for that, thank you. We'll start with the other union parties. Anybody else want to say anything? There's only one other union party isn't there?

PN44

MS LEIBHABER: Two.

PN45

THE DEPUTY PRESIDENT: Two. Go ahead. Somebody speak.

PN46

MS DABARERA: Deputy President, speaking for United Voice. So we have had some discussions with the AMWU and the HSU regarding the coverage issue. Unfortunately we have not been able to reach agreement regarding the coverage matter and we still have concerns regarding the coverage of this award and the potential ambiguity. We would maintain that there does need to be an exclusion of the Ambulance and Patient Transport Industry Award within clause 4.2 of this proposed helicopter air crew award. At this stage we don't intend to file any further written submissions. We would be relying on our written submission that was filed on 14 February 2018.

PN47

THE DEPUTY PRESIDENT: Well, I'll just remind you that the alternative proposal is a variation to the Aircraft Cabin Crew Award, so I just make that point, okay? Yes.

PN48

MS DABARERA: Thank you, Deputy President.

PN49

MS LEIBHABER: Deputy President, our position is the same as United Voice. We're concerned that there's already an award covering employees in the patient transport industry and - - -

PN50

THE DEPUTY PRESIDENT: What award's that?

PN51

MS LEIBHABER: The Ambulance and Patient Transport Industry Award.

PN52

THE DEPUTY PRESIDENT: So it's the same issue?

PN53

MS LEIBHABER: It's the same issue, yes.

PN54

THE DEPUTY PRESIDENT: I make the same point to you, there's two alternative proposals. One is for a new award and one is for a variation to the Aircraft Cabin Crew Award.

PN55

MS LEIBHABER: And so we would probably seek to have opportunity to make brief submissions or amend our submissions on seeing those proposals before the hearing.

PN56

THE DEPUTY PRESIDENT: Well, I'm just making it clear that's what's proposed, as I understand it by the AMWU and AWU I think, and so whatever you do is a matter for you. Just so you understand that's what's being proposed.

PN57

MS LEIBHABER: Yes, Deputy President.

PN58

THE DEPUTY PRESIDENT: That's the unions. Babcock?

PN59

MR ROGERS: Yes, Deputy President. Is it easier if I remain seated?

PN60

THE DEPUTY PRESIDENT: Yes, that'll be fine.

PN61

MR ROGERS: Thank you. The position is as outlined in the document which Mr Nguyen provided to the Commission earlier this morning, in relation to those items which are agreed and those items which currently remain not agreed. As Mr Nguyen indicated, there's a further draft of the document that they're proposing to put forward. It may be that list of items which are not agreed might be further narrowed but until we see that we can't really commit, but there's every likelihood that that list of items maybe further reduced.

PN62

As indicated by Mr Nguyen, Babcock has no intention of cross-examining any of the union witnesses. We have flagged in the communications with the AMWU this morning that there may be a need to file some additional evidence on a couple of discreet issues; one of which goes to superannuation that's only become an issue in the discussions that we have had with the AMWU over the last two or three weeks. It may be that that issue could go away, further discussions with the AMWU can resolve that point.

PN63

The other issue is putting in some material just explaining the medical assessment process that is conducted by the Civil Aviation and Safety Authority, and we thought that that would be prudent to have addressed, and it goes to the issue of the fitness allowance which is being pressed by the AMWU in this request for an award to cover this group of employees. Coupled with that there may be just a couple of additional supplementary submissions going to some of these clauses which are now outstanding which haven't been properly addressed in previous submissions that have been provided to the Commission. We certainly agree with the sentiment that the matter should take no more than a day when listed before the Full Bench.

PN64

THE DEPUTY PRESIDENT: Are you filing additional witness statements or not?

PN65

MR ROGERS: Well, we envisage that there potentially could be two but that will depend on how the discussions with the AMWU progress, once we see their additional award - draft award.

PN66

THE DEPUTY PRESIDENT: You've got two witnesses you think?

PN67

MR ROGERS: We've currently filed witness statements from two people so far. There may be just supplementary evidence from them.

PN68

THE DEPUTY PRESIDENT: Right, and they've filed, what eight witness statements?

PN69

MR ROGERS: Yes.

PN70

THE DEPUTY PRESIDENT: Well, then there's the issue of the separate award or variation of the Aircraft Cabin Crew Award.

PN71

MR ROGERS: We don't really have a strong position either way in relation to that. We're really open to whichever view the Commission may take on that point. The issue is really what the terms are that are then contained, whether it's in the varied existing award or if a new award is made.

PN72

THE DEPUTY PRESIDENT: Nothing else then?

PN73

MR ROGERS: No, Deputy President.

PN74

THE DEPUTY PRESIDENT: What about the coverage issue, what do you think about that?

PN75

MR ROGERS: We really think it's a live issue to be sorted out between the AMWU and the other unions.

PN76

THE DEPUTY PRESIDENT: Yes, I think - is there a need to vary the coverage clause? I think the AMWU last time said there wasn't.

PN77

MR ROGERS: Yes, well obviously it's a live issue between the unions but it's not something that we have a particularly strong view on.

PN78

THE DEPUTY PRESIDENT: Right, thank you for that. Anything else from anybody? Anything from anybody else?

PN79

MR RIDINGS: Not from me, sir.

PN80

MR NGUYEN: It's Mr Nguyen in Sydney for the AMWU and the AWU. I just add that in relation to the coverage issues - overlapping coverage issues between the AMWU and United Voice and HSU, I think that that issue is best resolved after the terms and conditions of the primary coverage of the proposed award are finalised. At that point there's a better opportunity for the Commission to assess what the appropriate terms and conditions should be for each side of the area of overlapping coverage, if any.

PN81

THE DEPUTY PRESIDENT: Right, so as I understand it then Mr Nguyen will - the AMWU will file a revised award by close of business next week firstly. Secondly, some additional witness material may be filed by Babcock. Thirdly, the AMWU has made it clear that it seeks a new award or in the alternative a variation to the Aircraft Cabin Crew Award 2010. Fourthly, the next step is determination of the various issues arising from submissions which is should a new award be made, should a variation be made, if so what are the award terms. That's where we've got to, isn't it? We need to set down a Full Bench hearing to do that. Is that where we've got to everybody?

PN82

MR NGUYEN: Yes, that's correct, Deputy President. If I could just ask for in the timeline if Babcock provide materials which aren't agreed to by the AMWU - if it's not a set of agreed facts that we are given an opportunity to respond to that material as well.

PN83

THE DEPUTY PRESIDENT: Right. Well, Babcock will have two weeks then to file any additional material and the AMWU will have three weeks, and other unions, to respond to that, okay? We'll list it after that. Nothing else?

PN84

MR RIDINGS: No, sir.

PN85

MR ROGERS: No, Deputy President.

PN86

THE DEPUTY PRESIDENT: Terrific, thanks very much. The matter's adjourned.

PN87

MR RIDINGS: Thank you.

ADJOURNED INDEFINITELY [11.27 AM]