Australian and International Pilots Association v Australian Federation of Air Pilots, Transport Workers' Union of Australia and Qantas Airways Limited t/a Qantas

[2021] FWC 1439

[2021] FWC 1439

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

Australian and International Pilots Association
v
Australian Federation of Air Pilots, Transport Workers' Union of Australia and Qantas Airways Limited t/a Qantas
(C2021/1156)

VICE PRESIDENT HATCHER SYDNEY, 17 MARCH 2021

Stay decision

[1] On 24 February 2021, Deputy President Saunders issued a decision 1 in which he granted an application filed by the Australian Federation of Air Pilots (AFAP) pursuant to s 158(1) of the Fair Work (Registered Organisations) Act 2009 (RO Act) for the Commission’s consent to an alteration of its eligibility rule to expand its coverage of pilots. The Australian and International Pilots Association (AIPA), Qantas Airways Ltd (Qantas) and the Transport Workers’ Union (TWU) opposed the grant of consent to the AFAP’s rule alteration. The Deputy President’s decision to consent to the rule change had the effect of broadening rule 2.1 of the AFAP Rules to overcome eligibility exclusions in that rule relating to pilots employed by Qantas, and pilots falling into two other categories which are, for present purposes, inconsequential. The alteration to rule 2.1 of the AFAP rules took effect on 3 March 2021.

[2] The AIPA has constitutional coverage of Qantas pilots, and approximately 90 percent of all such pilots are currently members of the AIPA. On 3 March 2021, the AIPA filed an appeal against the Deputy President’s decision. The grounds for appeal stated in the AIPA’s amended notice of appeal are as follows (excluding the particulars provided):

1. The Commission erred in its construction of, and applied the wrong principle under, s 158(4) of the RO Act.

2. The Commission erred, in relation to the 17 rights referred to in paragraphs [186]-[255] by:

(a) failing to give appropriate weight to those facts, and to draw the correct inferences, which established that AIPA was the better organisation compared with AFAP;

(b) failing to find that the enmeshment provisions made AIPA the better organisation compared with AFAP;

(c) making the incorrect findings about the representative role of the AIPA concerning the rights and duties under these provisions;

(d) failing to make findings, or the correct findings, about the likely continuation of the enmeshment provisions after the application before the Commission was determined.

3. The Commission erred in:

(a) failing to find that AIPA was the better organisation;

(b) not finding that the AFAP was not the better organisation.

4. The Commission erred in consideration of the discretion under s 158(8) by:

(a) failing to give consideration, or appropriate weight, to the demarcation disputes that would be created by the grant of the application;

(b) taking into account or giving too much weight to irrelevant factors such as speculation as to AFAP’s likelihood of recruiting members and represent those members under current and future Enterprise Agreements, particularly in circumstances in which the evidence established that the overwhelming majority of those members retained membership for insurance purposes and had not sought industrial representation by AFAP and there was no evidence that more than 1% of the disputed class sought industrial representation by AFAP [294], [296];

(c) basing its decision at [292] on speculation that the granting of the application would keep AIPA on its toes and honest, when the conditions negotiated by AIPA were already ‘the gold standard’ [267], density was already extremely high [274], and there was no allegation that AIPA would not continue to be honest.

5. The Commission erred in its approach to s 158(2) by:

(a) finding at [70] that there was no need to be satisfied that requirements in the rules that members of the Convention be given 42 days notice of the time, place and business of the Convention had been met;

(b) In the alternative to (a), finding that the provisions of the rules going to notice of members were met;

(c) finding that there was no need to be satisfied that the rule going to proxies was complied with;

(d) finding in the alternative that the proxy rule was satisfied absent any evidence that it was.

[3] In its notice of appeal, the AIPA seeks a stay of the Deputy President’s decision. This decision is concerned with the determination of the stay application.

[4] At the hearing of the stay application before me on Monday 15 March 2021, the AIPA relied on a statement of evidence made by Ms Sonia Chandra, the AIPA’s Head of Legal, in support of the stay application. Ms Chandra’s statement identifies various industrial problems which, she avers, may arise if a stay is not granted. She describes a number of industrial issues which she anticipates are likely to arise in respect of Qantas mainland pilots represented by the AIPA over the next six months, most of which involve issues surrounding their gradual return to work following the COVID-19 pandemic. These include dealing with job vacancies on the B737 aircraft, new patterns of flying resulting from COVID-19, and consultations concerning the Fatigue Risk Management System and pre-allocation of flying.

[5] Ms Chandra states that if a stay is not granted, Qantas’ obligations to consult with the AIPA under various provisions of the Qantas Airways Limited (Short Haul) Enterprise Agreement 2020 and the Qantas Airways Limited (Long Haul) Enterprise Agreement 2020 will be affected. She states that, additionally, the provisions under the two agreements that empower the AIPA to provide, on behalf of pilots, consent and dispensations preventing pilots from commencing grievance procedures or permitting Qantas to operate in a way that would otherwise be contrary to the agreements would also be affected. Although, if a stay is not granted, the AFAP would not have any of the rights under the agreements possessed by the AIPA, Ms Chandra expresses concern that AFAP activity pursuant to its expanded eligibility rule and its involvement in the issues requiring resolution would cause problems and delay and disrupt the current role of the AIPA in balancing the respective interests of different groups of pilots, particularly in relation to issues in which pilot seniority is relevant. Ms Chandra also expresses the concern that the capacity of the AIPA to reach constructive agreements with Qantas in relation to the issues likely to arise will be made more difficult if the AFAP is recruiting for members, advocating alternative positions and seeking “workarounds” in relation to its current exclusion from the consultation, consent and dispensation rights under the agreements.

[6] In its submissions at the stay hearing, the AIPA outlined the case it proposed to advance in respect of the appeal grounds, and submitted that the balance of convenience favoured the grant of a stay. The AFAP, which opposed the grant of the stay, submitted that the appeal grounds did not have any reasonable prospects of success, and that the AIPA had not demonstrated that the balance of convenience favoured the grant of a stay. In the latter respect, the AFAP submitted that:

•  it intended to behave responsibly and cooperatively with the AIPA and Qantas and to act in the best interest of the pilots;

•  it had demonstrated an ability to co-exist peacefully with Jetstar and Qantas Group airlines over many years and had worked with the AIPA at operations where they have shared coverage;

•  the Deputy President had made findings that disputation between the AFAP and the AIPA was unlikely;

•  the AFAP is not currently engaging in any active recruitment for members from Qantas;

•  there is no evidence that the decision is causing or will cause harm to the AIPA, nor any evidence of an immediate effect on its membership;

•  if a stay is granted, the inconvenience or prejudice caused to the AFAP would likely include Qantas refusing to deal with the AFAP regarding Qantas mainline pilots and delay to the enrolment of any pilots who wish to join, thereby affecting membership fee income from those pilots;

•  if a stay is granted, any Qantas pilots who wish to join the AFAP would be deprived of that opportunity and benefit, including part-time pilots working outside Qantas and independent contractors; and

•  in relation to any industrial inconvenience, there is no evidence to suggest the refusal of a stay would cause difficulties in the interim period pending the determination of the appeal such as the AFAP commencing separate action in its own name or exercising representation rights under the agreements.

[7] The TWU indicated that it did not oppose the grant of a stay. Qantas did not seek to be heard in relation to the stay application.

[8] At the hearing, I raised with the parties whether it was possible to formulate an undertaking that might be given by the AFAP in lieu of any stay being granted. After the hearing, the AFAP communicated in writing that it was prepared to give the following undertaking unconditionally (that is, regardless of whether a stay is granted or not):

“The AFAP undertakes that it will not, pending the hearing and determination of the appeal, send any personal communication to any Qantas pilot who is not, as at 15 March 2021, a member of the AFAP, for the purposes of seeking them to join the AFAP, unless the communication is made in response to an approach from the pilot.”

[9] The AIPA submitted in response that the AFAP’s proposed undertaking was inadequate. Despite contending that the issue of a stay was the preferred course of action for the AIPA as opposed to an undertaking, the AIPA proposed an alternative undertaking as follows:

“The AFAP undertakes that it will not, pending the hearing and determination of the appeal:

(i) directly or indirectly encourage any Qantas pilot who is not, as at 15 March 2021, a member of the AFAP to become a member of AFAP; and 

(ii) AFAP will not take any steps to procure any application for membership from any Qantas pilot who is not, as at 15 March 2021, a member of the AFAP.”

[10] The principles applying to the determination of stay applications which are usually applied by the Commission are as stated in the decision of the Australian Industrial Relations Commission in Edghill v Kellow-Falkiner Motors Pty Ltd. 2 Paragraph [5] of that decision states: 

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospects of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.”

[11] In assessing for the purpose of a stay application whether an appeal has the requisite prospects of success, the Commission necessarily engages in an assessment of the merits that is preliminary in nature, since the Commission will not have had the benefit of hearing the appellant’s full argument and usually will not have had the opportunity to properly peruse the case materials. 3 

[12] I am sufficiently persuaded at this point in time that at least grounds 2, 3 and 4 of the appeal are reasonably arguable and have some prospect of success, and that there is also a reasonable prospect of the AIPA being granted permission to appeal. I do not consider it necessary nor, since I will sit on the Full Bench which hears the appeal, appropriate to set out any detailed reasons for this conclusion. It is sufficient to say that, in respect of the assessment required by s 158(4) of the RO Act and the exercise of the discretion under s 158(8), it is arguable that the Deputy President drew inferences and made conclusions which were not reasonably available on the material before him. This is not to say, of course, that grounds 2, 3 and 4 will be successful or that it is more probable than not that they will succeed, but I consider that they are sufficiently worthy of consideration based upon a very preliminary assessment of their merits.

[13] Although, as I indicated to the parties, the appeal will be heard in the week beginning 19 April 2021, meaning that it will be a relatively short period until the appeal is determined, I am nonetheless satisfied that the balance of convenience favours the grant of a stay in respect of that part of the extension of the AFAP’s coverage which encompasses Qantas pilots. As the statement of evidence of Ms Chandra explains, the AIPA has an entrenched position in the agreements covering Qantas’ domestic and international pilots in that it is granted key rights that are critical to the functioning of Qantas’ pilot operations. This reflects the historic position which has prevailed for many years whereby the AIPA has been the sole industrial representative of Qantas pilots, with all but a small proportion of those pilots being members of the AFAP. I accept Ms Chandra’s evidence that, in the next few months, a number of important industrial issues involving Qantas pilots are likely to arise which will require the AIPA to exercise its rights under the agreements, as Qantas undertakes the task of re-enlivening its flying operations in the wake of the COVID-19 pandemic. Given Qantas’ importance to the wider economy, it is critical in my view that these issues be resolved responsibly in a cooperative and expeditious manner.

[14] I accept that if the AIPA is, in effect, “looking over its shoulder” in the process because it faces a competitor union which is seeking to enrol and represent Qantas pilots, that will compromise its capacity to fulfil the important role which the agreements assign to it. In circumstances where the AIPA’s role requires it balance the competing interests of different groups of Qantas pilots, including in relation to seniority, it will be difficult for it to act cooperatively in the wider interests of Qantas and its pilot workforce if the AFAP is in a position to advocate alternative positions and recruit any temporarily disgruntled members.

[15] From the AFAP’s perspective, the grant of a stay would deny it the fruits of its success before the Deputy President for only a relatively short period, although I accept that it would affect the AFAP’s capacity to represent the interests of the small number of Qantas pilots it currently has as members as a result of their previous employment in areas of the AFAP’s coverage.

[16] For these reasons, I consider that the AIPA has made out a proper case for the grant of a stay. I do not consider that the undertaking proposed by the AFAP constitutes an adequate alternative to the grant of a stay order. It is ambiguous as to what constitutes a “personal communication” and the circumstances in which the AFAP may make such a communication for purposes other than recruitment or in response to “an approach from the pilot”, and is likely to result in disputation.

[17] The alternative undertaking proposed by the AIPA would address the balance of convenience issues I have identified, and would allow the AFAP to represent its existing members employed by Qantas. I have received no indication to date that the AFAP is prepared to give such an undertaking. However, I am prepared to provide the AFAP an opportunity to give an undertaking in the terms proposed in lieu of the making of a stay order. The course I will take, therefore, is to allow the AFAP until 4.00pm on Thursday 18 March 2021 to provide to the Commission a written undertaking in the terms proposed by the AIPA signed by an officer with the appropriate authority to do so. If the undertaking is not given, I will make an order staying the operation of the Deputy President’s decision to consent to the addition of rule 2.1(c) to the AFAP’s rules insofar as this would permit the AFAP to enrol as members pilots employed by Qantas. The terms of the stay order I will make in that circumstance are attached.

VICE PRESIDENT

Appearances:

Mr M Irving QC for the appellant.
Mr C Dowling SC with Mr J Fetter of counsel for the respondent.
Ms A Owens-Strauss on behalf of the Transport Workers’ Union.

Hearing details:

2021.
Sydney (via telephone).
15 March.

Printed by authority of the Commonwealth Government Printer

<PR727840>

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STAY ORDER

Fair Work Act 2009
s.604 - Appeal of decisions

Australian and International Pilots Association
v
Australian Federation of Air Pilots, Transport Workers' Union of Australia and Qantas Airways Limited t/a Qantas
(C2021/1156)

VICE PRESIDENT HATCHER SYDNEY, 18 MARCH 2021

Further to the decision issued on 17 March 2021 ([2021] FWC 1439), and pursuant to s 606(1) of the Fair Work Act 2009, the Commission makes the following order:

1. The decision of Deputy President Saunders issued on 24 February 2021 ([2021] FWC 1012) to consent to the addition of rule 2.1(c) to the rules of the Australian Federation of Air Pilots, insofar as this would permit the AFAP to enrol as members pilots employed by Qantas Airways Limited, is stayed pending the determination of this appeal.

2. This order shall operate on and from 18 March 2021.

3. Liberty to apply is granted.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

 1   [2021] FWC 1012

 2 [2000] AIRC 785, Print S2639

 3   Supreme Caravans Pty Ltd v Hung Pham [2013] FWC 4766 at [9]