Objective reasonableness - cl 47 & a failure to consult
90 Although it has been accepted that Mr Purvinas in fact held a suspicion that there had been a breach of cl 47 of the Enterprise Agreement, the separate question as to the reasonableness of that suspicion remains to be resolved.
91 That question is resolved adversely to Mr Purvinas.
92 An inquiry into the objective reasonableness of a suspicion as to a contravention of cl 47 gets off to a shaky start viewed from his perspective.
93 Uncertainty is generated by a lack of clarity as to what should have been the subject of consultation. At the outset, Mr Purvinas in his email sent on 5 January 2016 seems to have identified the contravention of cl 47 as being the decision to implement the leave burn program without having first consulted with the Association. By 1 June 2016, however, the "concerns in relation to a failure to consult" were expressed in Mr Purvinas' letter of that date more broadly.
94 Although the objective reasonableness of Mr Purvinas' suspicion is more appropriately determined closer to the time when the Entry Notice was given, there remains to an objective observer uncertainty as to what was the subject matter about which there was a suspected failure to consult.
95 But such matters can be left to one side.
96 At the core of the concern being voiced by Mr Purvinas was the failure on the part of Qantas to consult on the basis upon which there had been changes to the workplace. So much follows from the very text of the 1 June 2016 letter from Mr Purvinas to Qantas and (for example) the asserted failure to consult in relation to the "lack of visibility on how Qantas have sourced some new work but have not adjusted the alleged surplus".
97 Mr Purvinas (for example) was concerned about the impact of a decision made by Qantas to bring back "in-house" work that had previously been performed by Panasonic in respect to inflight entertainment. But he had little knowledge of the qualifications of those employees who formerly performed work at Panasonic. But that lack of information did not deter Mr Purvinas from forming a view as to the potential impact it would have upon the work performed by Qantas licenced aircraft maintenance engineers. The lack of information available to Mr Purvinas was exposed in the following exchange during his cross-examination:
And some other examples you give involve a high element of guesswork by you, don't they? - I disagree.
In-flight entertainment? - Yes.
That was work that used to be performed by Panasonic? - Correct.
And you heard that Panasonic had about 20 employees…? - Yes.
… performing that work. And you simply then said, well, that should - when Qantas brought that work back in-house, that should reduce the surplus by 20? - I said that.
Yes. Now, Panasonic didn't employ licensed aircraft maintenance engineers, did they? - I'm not sure.
No. Do you know who the employees were of Panasonic? - Not personally, no.
Did you know what skills they had? - They were aircraft engineers.
Do you know how experienced they were? - No.
Did you know how much the licensed aircraft maintenance engineers at Qantas had worked on the in-flight entertainment systems previously? - I don't know how much, but - no, I don't know how much they worked on them.
Some LAMEs would have more experience with this sort of facility than others? - I don't know.
Do you know anything about Panasonic's industrial arrangements? - Not that I recall, no.
Their work hours? - No.
How long their shifts were? - No.
Their estimated productivity levels? - No.
Do you know anything about how long they took to do the activities performed by Qantas now? - No.
Now, every single one of those questions I've just asked you could have an impact on whether 20 Panasonic employees would require 20 licensed aircraft maintenance engineers, wouldn't they? - They would.
Yes. And you didn't know any of those things, but you've just done a simple 20 for 20 estimation? - That's correct.
98 The first of two difficulties to be confronted when resolving the objective reasonableness of the suspicion held as to a contravention of cl 47.2 is to be found within the terms of that clause. Clause 47.2 is relevantly confined to the requirement to consult on those changes that have a "significant effect on employees". "Significant effects" is defined to include "major changes in the composition, operation or size of Qantas' workforce".
99 Mr Purvinas formed the suspicions that he did, being suspicions which it has been concluded were in fact held by him, but without directing attention to those matters essential for an objective view to be reached that the requirement to consult imposed by cl 47.2 was in fact triggered by the changes under consideration. It is the identification of those matters to which Mr Purvinas did not direct attention which underlines the lack of objective reasonableness of the suspicions formed. In the absence of consideration being given to matters upon which a suspicion could be reasonably founded, the suspicion itself lacks objectivity and is transformed into a personal and subjective suspicion devoid of any real support.
100 Mr Purvinas, it should be acknowledged, would disagree with such a conclusion. During his cross-examination, there was thus the following exchange:
If I asked you what the major change was over which Qantas was supposed to consult, your answer would be you don't know, wouldn't it? - No.
What is the major change? - There are many changes. There are changes that are outlined in my affidavit that amend the amount of staff that Qantas have; that ties in with leave burn and can ultimately lead to redundancies.
Do I understand that to be an allegation that the major change is a collocation of a whole lot of minor changes? - Well, I don't know what the word "collocation" means, and I've never heard it before. But there are a number of triggers that require consultation: redundancy, major work place change. And, in fact, the clause is not limited to the amount of matters that trigger consultation. We had had a letter from Qantas in June - I think it was, 2015, saying if they determine they will have leave burn again in 2016, they will recalculate the surplus. Those matters all are encompassed, on my understanding, of matters that require consultation under clause 47.
Isn't the point of your allegation that you didn't know what the changes were because Qantas hadn't told you. That's right, isn't it? - No. I knew what many of the changes were because members had told me.
You knew what the changes were that you relied upon. But you were saying to Qantas, "Well, if you've got a different figure, there must be a whole lot of other stuff that I haven't heard of". That's right, isn't it? - No. I think those matters are clearly outlined in my affidavit.
And your complaint was, "I haven't heard about these things. Therefore, you've failed to consult with me"? - Yes. I said to them on 25 January, that you haven't consulted about these matters. You've made a decision before giving us an opportunity to undertake the steps required in clause 47.
And because you didn't know what they were, you couldn't know whether they were a structural change or not, could you? - I outlined at that meeting many structural changes …
No. Just hear my question, please, Mr Purvinas? - Okay.
Because you didn't know what the changes were, you couldn't identify whether they were structural or not? - I disagree.
You couldn't identify whether they were technological or not? - I disagree.
You couldn't identify whether they were organisational or not? - No. I disagree.
You couldn't identify whether they were, even, major or not? - I disagree.
Did you ever look at any of the cases on what a major change was for the purpose of consultation? - When?
Before - when formulating your alleged reasonable suspicion? - Before formulating a reasonable suspicion, I had looked at cases about major change.
Yes. Are you are aware of the Full Court, Port Kembla Coal case? - No.
No. Did you look at the cases about what a structural, technological or organisational change was? - No.
Did you look at the TCR case? - The TC …
Termination, Change and Redundancy case from out of the Commission? - I don't think so.
No. How is it, that a change that might have increased or decreased workload - one that you had never heard of - had never been reported to you by any of your members - amounts to a major change? - It had been reported to me by members.
The whole point of your complaint, Mr Purvinas, was that it hadn't been reported to you because you didn't know? - No. My whole - my whole complaint is that Qantas hadn't consulted over those matters. Members had reported to me that they opened up a complete new section to carry out reconfig work on 737 aircraft. I knew about the changes. Qantas would not consult or provide any further details after we explained to them, explicitly, at the meeting on 25 January that they are required to.
Your allegation, Mr Purvinas, was about the failure to consult with you about changes that you had not heard of. Yes or no? - No.
The cross-examination on the lack of knowledge of the "authorities" may (perhaps) be regarded as a cross-examiner's flourish; but the balance of the exchange demonstrates that an objective permit holder in the shoes of Mr Purvinas would not have formed a suspicion as to a contravention of cl 47.
101 Care must necessarily be exercised when considering either the subjective or objective character of a suspicion held. The basis of a suspicion may change considerably over time; a suspicion once held may disappear or become more firmly entrenched. It is the reasonableness of the suspicion held, however, at the time when the right conferred by s 481 is exercised that assumes importance. But there is nothing on the facts of the present case to suggest that as at 7 and/or 8 June 2016 Mr Purvinas had any better understanding of any of those matters canvassed in his cross-examination.
102 The second of the two difficulties to be confronted when resolving the question of the objective reasonableness of the suspicion held as to a contravention of cl 47.2 is found in the request made by Qantas on 27 May 2016 for Mr Purvinas to "detail the basis of your allegation" that there had been a failure to consult and the response provided by Mr Purvinas on 1 June 2016. The response provided by Mr Purvinas on that date characterised the Qantas question as "disingenuous". Even though Mr Purvinas in his 1 June 2016 letter went on to refer to the "previous correspondence … and our meeting on 27 April 2016", there was no attempt on his part to set forth in his written response any matter which sought to address any of the questions raised by Qantas in its request. On one view, the characterisation of the Qantas request as "disingenuous" was hardly conducive to future meaningful negotiation; but, and more importantly, the failure on Mr Purvinas' part to respond more meaningfully to the Qantas request goes some way to undermining the objective reasonableness of the suspicions held.
103 A residual difficulty is a concern that Qantas in its letter dated 27 May 2016 left the door open for future discussions and "consultation" with Mr Purvinas and a willingness "to meet with you to discuss the additional concerns". Such a letter does not sit comfortably with the position sought to be advanced that there was a failure to "consult". Although it may be accepted that some decisions had already been made by Qantas and that a subsequent opportunity to "consult" is no substitute for prior "consultation", there unquestionably remained a number of future decisions yet to be made which potentially could have been the subject of meaningful "consultation". Decisions affecting possible future redundancies and the rate at which leave entitlements were being "burn[ed]" were but two such possibilities. Mr Purvinas in his response, however, does not seem to have made any such distinction. A permit holder, more objectively informed, may well have focussed attention more carefully on that which could more fruitfully have been the subject of discussion. But that residual concern need not be further pursued. On one view, the point had been reached were there was an impasse between the information being sought by Mr Purvinas and the information being provided by Qantas.
104 In assessing the objective reasonableness of the suspicion that Qantas had contravened cl 47 of the Enterprise Agreement, reference has thus been had to (inter alia):
the state of knowledge - or an absence of knowledge - of matters centrally relevant to an objective assessment as to the nature of work being undertaken;
the terms of the correspondence between Mr Purvinas and Qantas;
the terms in which the Entry Notice is itself expressed - and that which it has been concluded has not been specified in the Entry Notice;
the concerns expressed by Qantas - and the clarification it was seeking - in its letter dated 27 May 2016; and
the response provided by Mr Purvinas on 1 June 2016.
105 The suspicion that Mr Purvinas held in respect to the suspected contravention of cl 47, it is concluded, was not a suspicion that could be held by a reasonable permit holder (George v Rockett (1990) 170 CLR 104), especially in view of the objections which had been taken on behalf of Qantas and its request for further clarification (John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union [2009] FCA 786, (2009) 186 IR 408).