Australian and International Pilots Association v Jetstar Airways Pty Ltd
[2010] FWA 1272
•26 FEBRUARY 2010
[2010] FWA 1272 |
|
DECISION |
Fair Work Act 2009
s.739 - Application to deal with a dispute
v
Jetstar Airways Pty Ltd
(C2009/10238)
Airline operations | |
COMMISSIONER RAFFAELLI | SYDNEY, 26 FEBRUARY 2010 |
Dispute relates to the Jetstar Airways Pilots Agreement 2008 – application as to allocation on the basis of seniority.
[1] In August 2009 the Australian and International Pilots Association (AIPA) made application pursuant to section 739 of the Fair Work Act 2009 (the FW Act) for Fair Work Australia to deal with a dispute. The party with which it was in dispute was said to be Jetstar Airways Limited (Jetstar), an employer of about 550 pilots, many of whom are members of AIPA.
[2] The dispute was said to be about Jetstar’s decision to alter the manner in which it dealt with the allocation of employment opportunities as they became available. AIPA contended that Jetstar’s decision to not apply seniority for such allocation (albeit for some positions) was contrary to the Jetstar Airways Pilots Agreement 2009 (the Agreement) and airline industry and Jetstar practice.
[3] The dispute was the subject of conciliation which was not successful. Pursuant to the Agreement the dispute was the subject of private arbitration on 16 February 2010.
[4] In the proceedings Jetstar and the Australian Federation of Air Pilots (AFAP), which is a party to the Agreement and which has Jetstar pilots as members, both submitted that this tribunal lacked jurisdiction to deal with the matter.
[5] I determined to conduct the hearing by dealing with both the jurisdictional matters and the merit issue. In respect of the latter consideration, a group of pilots known as the Direct Entry Captains (DEC) made submissions.
[6] The first jurisdictional objection raised by both Jetstar and the AFAP concerns the application’s reliance on section 739 of the FW Act in circumstances where the Agreement is not one that has been made under that Act. The Agreement was made under the Workplace Relations Act 1996 (the WR Act). Therefore, and together with the operation of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009, the provision of section 709 of the WR Act is able to be utilised to resolve disputes under the terms of the Agreement. Section 739 of the FW Act is unable to found any such jurisdiction.
[7] In response, AIPA made application at the hearing that Fair Work Australia now conduct the dispute resolution process pursuant to section 709 of the WR Act.
[8] I accept AIPA’s application to alter the basis on which it has made an application. I will now deal with the application pursuant to Division 5 of Part 13 of the WR Act.
[9] The more substantive basis for challenging the proceedings before Fair Work Australia relies on the operation of section 710 of the WR Act, found in the same division as section 709. Section 710 provides as follows:
“710 Grounds on which Commission must refuse application
The Commission must refuse to conduct a dispute resolution process under this Division in relation to a matter in dispute if:
(a) the dispute is not one that, under the terms of the workplace agreement, may be resolved using a dispute resolution process conducted by the Commission; or
(b) any of the steps that, under the terms of agreement, must be taken before the matter is referred to the Commission have not been taken; or
(c) the matter is the subject of proceedings or has already been settled as a result of proceedings, whether before a court or another body, under a law of the Commonwealth or of a State or Territory relating to the prevention of discrimination or to equal opportunity.”
[10] It was put by both Jetstar and the AFAP that the steps that are to be taken under the Agreement’s dispute procedure were not taken before the matter was referred to this tribunal (section 710(b)). Consequently, if so found, I must refuse to deal with the matter.
[11] Clause 18.1 of the Agreement provides as follows:
“18.1 It is important that pilots and Jetstar commit to resolving any disputes that may arise over the application of this Agreement. If such a dispute arises the following procedure must be followed:
18.1.1 The matter will first be discussed by the affected pilot and their Supervisor and/or Manager.
18.1.2 If not settled, the matter will then be discussed by the affected pilot and their Manager Line Operations.
18.1.2 If still not resolved, the matter will be discussed by the affected pilot and the General manager Flight Operations or their representative.
18.1.3 Should an issue remain unresolved, it may be referred by either party to the dispute to the Commission to resolve through private conciliation and or arbitration. Subject to the provisions of this clause, the parties to the dispute will accept the outcome of any private arbitration.”
[12] It was submitted that the procedure in 18.1 is for the resolution of disputes between Jetstar and pilots over the application of the Agreement.
[13] At no time has any pilot identified himself/herself or themselves as being in dispute with Jetstar. Certainly no such pilot(s) has proceeded through the steps set out in 18.1.1, 18.1.2 and 18.1.3.
[14] While pilots are allowed to be represented (including by AIPA), it is the pilot that is to be a party to the dispute.
[15] Additionally, it was put that as the alleged change to the allocation process was not due to commence until 20 January 2010, no pilot was directly affected until at least then. That was of course much after AIPA’s application was made and almost at the point of arbitration. In the circumstances, the steps contained in clause 18.1 can not have taken place.
[16] AIPA’s response was first, to point out that at clause 18.1.3 there is reference to the General Manager Flight Operations. This position no longer exists and therefore strict compliance with the procedure is not possible.
[17] Second, AIPA put that Jetstar’s refusal to allow AIPA representatives to participate in the Jetstar Pilot Consultative Council (JPCC) has effectively hindered discussion and resolution of the dispute.
[18] Third, Jetstar itself was prepared to engage with AIPA over the allocation issue and supposedly outside the dispute resolution process provided by the Agreement.
[19] Fourth, it submitted that the system of filling vacancies has been a live issue for a lengthy period of time. It is of interest to many, if not all, pilots. It is impractical and inappropriate to suggest that the concern of each pilot needs to be raised through the process in clause 18.1 or that it cannot be done until the post January 2010 allocations are made by Jetstar which place a pilot/pilots at an actual rather than potential disadvantage.
[20] Indeed, even if the dispute had been raised individually by a pilot the reality is that the dispute would not have been resolved in the steps set out in the process and the matter would in any case have ended at this point for private arbitration.
[21] Consequently, the most appropriate means of raising the concerns of pilots was to do so in the general manner by AIPA. In that regard, it relied on the approach taken by a Full Bench of the Australian Industrial Relations Commission in University of New South Wales v National Tertiary Education Industry Union ([2009] AIRCFB 571).
[22] AIPA also referred to the statement of Captain Lundt, the chairperson of the Jetstar Pilot’s Council, of 18 January 2010 where he raised a dispute with Jetstar over its allocation system. In doing so, he raised it both on his own behalf and on behalf of other pilots.
Conclusion
[23] The provisions of clause 18.1 are clear. The first sentence is a statement of the importance that pilots generally and Jetstar commit to resolving disputes. This is framed in terms that can be said to have general (as opposed to individual) application. However, if a dispute does arise, the steps set out the involvement of the “affected pilot”. Moreover, the second sentence of the preamble paragraph makes it clear that the procedure set out (including the role of the “affected pilot”) must be followed.
[24] There is no evidence that the matter before me (supposedly at step 18.1.4 of the process) has been preceded by the dispute being raised by any affected pilot or number of pilots.
[25] Whatever the dispute raised by Captain Lundt on 18 January 2010 is (his or that of his fellow pilots or that of the Jetstar Pilots Council or of AIPA) it can not be said to have been the subject of the necessary steps found in 18.1.1, 18.1.2 or 18.1.3.
[26] AIPA’s supposed difficulties with the identification of the General Manager Flight Operations might have some relevance if it had got to stage 18.1.3. It had not, and I consequently find such irrelevant.
[27] As to what Jetstar did or did not do in respect of AIPA’s desire to attend the consultative council, or being prepared to talk to the association, cannot correct the clear obligatory words of clause 18.1, that a reliance on the private arbitration outcome is predicated on the earlier steps. Jetstar and AIPA or any other person or body can attempt to discuss and settle matters as they see fit. However, if they wish to proceed under clause 18.1 then they must comply with it. So much is obvious by those words in the second sentence of the preamble paragraph.
[28] As to the argument that the reality was that Jetstar has been aware for some time that AIPA and pilots were very concerned at its proposed action, and the process followed was the most practical means of dealing with the dispute, the same response applies. Whatever can have been done in a better and more efficient way, if 18.1.4 is to be ultimately utilised then it is predicated on following the steps in 18.1.1, 18.1.2 and 18.1.3.
[29] In any case, the difficulty in accepting AIPA’s so-called common sense practical approach, is that, the substantive players in the dispute are not the employee(s) and their employer but an organization of employees and the employer. This is a materially different regime and at odds with the provisions of clause 18.1. While clause 18.7 allows AIPA to represent an employee, it does not give AIPA the substantive role suggested in the interests of common sense or practicality.
[30] For the reasons expressed above, I find that the dispute settlement procedure provided in clause 18.1 has not been followed. I also find that the failure is one of substance in that the identification of the pilot(s) and the taking of the clear steps in 18.1.1, 18.1.2 and 18.1.3 are a practical and easily understood means of dealing with issues that arise of concern to the parties.
[31] I make the observation that if the steps had been followed, the procedure could have been properly commenced by a pilot aggrieved merely because it saw that in several months time, Jetstar intended to act contrary to the Agreement. Each pilot is a party to the Agreement (clause 1.1) and any party has an interest that is affected by a threat to the integrity of the Agreement.
[32] Given my findings in [30], the provisions of section 710(b) of the WR Act come into play. It is clear that the steps under the terms of the Agreement have not been taken before coming to the Commission, now Fair Work Australia. As a consequence, section 710 is clear in its direction. No discretion is allowed. I must refuse to conduct the dispute resolution process and I do so.
[33] The matter is dismissed for want of jurisdiction.
[34] In the circumstances, it is not appropriate to deal with the issue as to merit.
COMMISSIONER
Appearances:
J. Nolan of counsel with K. Bolwell for Australian & International Pilots Association.
N. Ogilvie solicitor with T. Nuttal for Jetstar Airways Pty Limited.
B. Foxley- Conolly for Direct Entry Captains.
L. Cox for Australian Federation of Air Pilots.
Hearing details:
2009
Sydney:
August 31;
October 22;
2010
January 18;
February 15.
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