Australian and International Pilots Association v Fair Work Australia

The case of Australian and International Pilots Association v Fair Work Australia involved a dispute over the validity of an order issued by Fair Work Australia (FWA), suspending and terminating protected industrial action by Qantas and its employees' unions. The unions, including the Australian and International Pilots Association (AIPA), the Australian Licensed Aircraft Engineers Association (ALAEA), and the Transport Workers Union (TWU), had been engaged in industrial action against Qantas in support of claims for new enterprise agreements. Qantas, in response, announced a lockout of union members and grounded its aircraft worldwide. The Commonwealth Minister applied to FWA to prevent the proposed lockout from being classified as protected industrial action under the Fair Work Act 2009 (Cth). FWA issued an order suspending and terminating the protected industrial action of the unions and Qantas, which AIPA challenged on the grounds that FWA failed to disaggregate the action being taken by the three unions and wrongly found AIPA's protected industrial action was a factor in the decision by Qantas to lock out AIPA employees. The central legal issues were whether FWA had jurisdiction to make the order and whether the order was a jurisdictional error or misapplication of law.

The Court found that FWA had jurisdiction to make an order under section 424 of the Act, which allows FWA to suspend or terminate protected industrial action if it threatens significant damage to the Australian economy. However, the Court also determined that FWA had erred by not disaggregating the actions of the three unions and wrongly found that AIPA’s protected industrial action was a factor in the decision by Qantas to lock out AIPA employees. The Court held that FWA’s order was invalid insofar as it terminated the protected industrial action engaged in by AIPA. Despite this error, the Court concluded that the order could not be challenged by AIPA because of section 413(7) of the Act, which removes the protected status of industrial action once an order under Division 6 is in effect. The Court dismissed the application for judicial review on the basis that the order, while flawed, had the effect of terminating AIPA’s protected industrial action, and thus the declaration sought by AIPA would have no practical consequences.

The Court dismissed the application for judicial review, holding that the order, while flawed, had the effect of terminating AIPA’s protected industrial action. Given the provisions of section 413(7), AIPA’s action would no longer be protected industrial action as long as the order terminating Qantas’ protected industrial action remained in force. The Court concluded that a declaration would have no practical consequences, and thus the application was dismissed. The Court did not order any specific relief beyond the dismissal of the application.