Australian Federation of Air Pilots v Australian and International Pilots Association
[2012] FWA 2627
•11 APRIL 2012
[2012] FWA 2627 |
|
DECISION |
Fair Work Act 2009
s 602 - Application to correct obvious error(s) etc. in relation to FWA’s decision
Australian Federation of Air Pilots
v
Australian and International Pilots Association
(B2012/526)
DEPUTY PRESIDENT SAMS | SYDNEY, 11 APRIL 2012 |
Application to correct decision to approve enterprise agreement - bargaining representatives - ‘slip rule’ - error not clear, self evident or apparent - application dismissed.
[1] On 9 January 2012, I published an approval decision ([2012] FWAA 147) of the Sunstate Airlines (QLD) Limited Pilots Enterprise Agreement 2011 (the ‘Agreement’). The first paragraph of the decision was in the following terms:
‘This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sunstate Airlines (QLD) Pty Limited (‘the ‘applicant’), which seeks the approval of Fair Work Australia (‘FWA’) of a single enterprise agreement to be known as the Sunstate Airlines (QLD) Pty Limited Pilots Enterprise Agreement 2011 (the ‘Agreement’). The Agreement was negotiated with the Australian Federation of Air Pilots (‘AFAP’) and the Australian and International Pilots Association (‘AIPA’). The Agreement is to cover 213 pilots engaged in airline operations, based primarily in Queensland.’
[2] On 25 January 2012, Mr Simon Lutton, from the AFAP, wrote to my Chambers seeking a correction to paragraph [1] (above) requesting that Fair Work Australia (‘FWA’) delete the reference to the Agreement having been negotiated with the AIPA. On 30 January 2012, Ms Kathryn Gallagher, Industrial Advisor for the AIPA, advised that there was no error in my decision and that there was no basis for the AFAP’s assertion that the AIPA was not a negotiating party to the Agreement. In light of the opposing contentions of the two employee organisations, I directed that the AFAP file a separate application. That application was filed on 13 February 2012, and listed for hearing on 22 March 2012.
[3] In relation to remedy, Mr Lutton asked Fair Work Australia (‘FWA’) to make the following orders, pursuant to s 602(1) of the Act:
1. That paragraph [1] of the decision [2012] FWAA 147 be amended as follows:
[1] This is an application, pursuant to s 185 of the Fair Work Act 2009 (the ‘Act’), filed by Sunstate Airlines (QLD) Pty Limited (‘the ‘applicant’), which seeks the approval of Fair Work Australia (‘FWA’) of a single enterprise agreement to be known as the Sunstate Airlines (QLD) Pty Limited Pilots Enterprise Agreement 2011 (the ‘Agreement’). The Agreement was negotiated with the Australian Federation of Air Pilots (‘AFAP’). The Agreement is to cover 213 pilots engaged in airline operations, based primarily in Queensland.
2. That paragraph [4] of the decision [2012 FWAA 147] be amended as follows:
[4] At a hearing of the application on 21 December 2011, Ms S Adams (with permission) and Captain M Davey appeared for the applicant, Ms K Gallagher appeared for the Australian and International Pilots Association (‘AIPA’) and Mr S Lutton appeared for AFAP.
SUBMISSIONS
For the AFAP
[4] Mr Lutton put that the AIPA did not take part in the negotiations for the Agreement and that paragraph [1] of FWA’s decision should be amended to reflect that fact. The AFAP recognised that the AIPA was a bargaining representative for the Agreement and had had an opportunity to negotiate the Agreement. However, separate logs of claims were served on Sunstate by the AFAP and by the AIPA. The log of claims served by the AFAP formed the basis of the Agreement.
[5] Mr Lutton said that between May 2011 and November 2011, enterprise agreement negotiations were held between the AFAP and Sunstate. The AIPA did not attend any of these meetings and the AFAP was unaware of any meetings held between the AIPA and Sunstate in which an enterprise agreement was discussed.
[6] Mr Lutton noted that prior to the approval of the Agreement, a document published by the AIPA to its members, dated 10 November 2011, stated that:
‘As you are already aware, the Company has reached an in principle agreement with AFAP and will be providing a copy of that agreement for your consideration. When the agreement was reached, AIPA and the Company had not yet concluded their negotiations’.
Thus, the AIPA’s own publication demonstrates that the negotiations conducted by the AIPA were distinct and separate from the negotiations conducted by the AFAP and that the negotiations conducted by the AIPA were not in respect of the Agreement.
[7] In oral submissions, Mr Lutton further submitted that the issue to be corrected is which employee organisation actually negotiated the Agreement. He put that the AFAP quite readily accepts that the AIPA may well be a bargaining representative; it may well support the Agreement and wish to be covered by it - but it had nothing to do with the negotiation of the Agreement.
[8] Mr Lutton said that the negotiation of the Agreement involved three Sunstate pilots, who are members of the AFAP, and who do not agree with the disputed sentence in paragraph [1] of FWA’s decision. Mr Lutton noted that while this matter may well be a small issue of fact, these pilots would like the decision corrected because it is of significance to the pilot group. Mr Lutton did not dispute that the AIPA was a bargaining representative and that it had no grounds to object to it being noted as a bargaining representative. However, when the employer said there were two employee organisations, the assumption that they were both actually part of the bargaining process, was not correct.
For the AIPA
[9] Mr J Nolan, of Counsel, argued that the contentions of the AFAP should be rejected. The AIPA had participated in negotiations with Sunstate; albeit in separate negotiating sessions from those in which the AFAP participated, and those negotiations concluded with an Agreement which was put to the relevant employees, with the AIPA’s endorsement. It is accurate to say - as FWA said in its decision - that the Agreement was ‘negotiated with the Australian Federation of Air Pilots (‘AFAP’) and the Australian and International Pilots Association (‘AIPA’)’ because negotiations for the Agreement were conducted with both employee organisations within the same timeframe. On 3 November 2011, Sunstate advised the AIPA that it had reached an in-principle agreement with the AFAP and that the Agreement was voted up by a majority of Sunstate pilots (with the AIPA support).
[10] Mr Nolan drew the Tribunal’s attention to the matters set out in s 602 of the Act, and submitted that in order to invoke FWA’s jurisdiction under s 602, the AFAP must identify an ‘obvious error, defect or irregularity’. For an error to be ‘obvious’ it must be ‘easily perceived or understood, clear, self-evident, or apparent’. An examination of the decisions in The Maritime Union of Australia v Boskalis Australia Pty Ltd[2011] FWA 4619; Lend Lease Project Management & Construction (Australia) Pty Ltd v Construction, Forestry, Mining and Energy Union [2011] FWA 3278; Bank of Queensland Limited re BOQ Enterprise Agreement 2011 [2011] FWA 3479 and the Theiss Pty Ltd; Balfour Beatty Pty Ltd re Theiss Balfour Beatty Regional Rail Link Work Package C Alliance Agreement 2011 [2011] FWA 8921, under s 602 of the Act, demonstrates the significant burden facing the AFAP, or any party, which seeks to have substantive, and contested alterations made to an order or decision of FWA.
[11] At the original hearing of the application for approval of the Agreement on 21 December 2011, the following statement, made by Ms Gallagher, representing the AIPA was recorded in the transcript:
‘Thankyou, your Honour. AIPA was a bargaining representative during the course of negotiating this Agreement. On the understanding that a majority of the pilots have approved this agreement, we’ve submitted a Form 18 and served it on all relevant parties. We approve of the approval of this Agreement, or rather we support the approval of the Agreement. AIPA agrees with the Form 17 submitted by Captain Mark Davey on behalf of QantasLink. Further, your Honour, AIPA wishes to be covered be the Agreement pursuant to s 183’.
Mr Nolan noted that, at no time, did the representative of the AFAP demur from this statement. If there was to be a dispute about the facts of the negotiations, this was surely the time to have raised it.
[12] Mr Nolan further submitted that having regard to the clear terms of s 602, the intended scope of this section as explained in the Explanatory Memorandum and the application of the section in decided cases, the AFAP application is misconceived and must fail. He said that the statutory expression of the ‘slip rule’ cannot be used to re-open a matter and agitate a contentious claim of the kind raised by the AFAP. In this respect, Mr Nolan cited Munro J, in Re Timber and Allied Industries Award 1999[2003] AIRC 1137 in which His Honour stated ‘it is not suitable to apply this rule where it concerns a matter of controversy’. Mr Nolan submitted that there is real controversy here which is entirely the product of the AFAP’s desire to achieve some kind of political advantage (over the AIPA).
[13] In oral submissions, Mr Nolan added that having regard to the history of the matter, the negotiations which took place, the fact that the AIPA was a bargaining representative and bargained for an agreement which was ultimately put to a vote with the AIPA’s support and endorsement, that should be the end of the matter.
In reply
[14] Mr Lutton disagreed that the Agreement was voted on with the endorsement and support of the AIPA. It was his understanding that it was the intention of the AIPA to object to the Agreement and that it had advised Sunstate accordingly. Mr Nolan interposed and said that initially there were some objectionable matters in respect to the ‘Better Off Overall Test’ (‘BOOT’) and that the AIPA had not promoted the Agreement. However, it later supported the Agreement when it was voted up by the employees.
[15] Mr Lutton agreed that there may well have been negotiations with the AIPA, but not for this particular Agreement. There were negotiations between the AIPA and Sunstate that the AFAP had no involvement in. The AFAP has a long history of enterprise agreement negotiations with Sunstate. The AFAP has always been the only party to every subsequent agreement. Mr Lutton submitted that this was an error of substance which, in accordance with the provisions of s 602(2) of the Act, should be corrected.
[16] I note that Sunstate filed no submissions in this matter and did not appear in the proceedings.
CONSIDERATION
[17] The power of FWA to make corrections to its decisions is found at s 602 of the Act as follows:
(1) FWA may correct or amend any obvious error, defect or irregularity (whether in substance or form) in relation to a decision of FWA (other than an error, defect or irregularity in a modern award or national minimum wage order).
Note 1: If FWA makes a decision to make an instrument, FWA may correct etc. the instrument under this section (see subsection 598(2)).
Note 2: FWA corrects modern awards and national minimum wage orders under sections 160 and 296.
(2) FWA may correct or amend the error, defect or irregularity:
(a) on its own initiative; or
(b) on application.
[18] The Explanatory Memorandum to the Fair Work Bill 2009 explained that s 602 was analogous to a court’s ability to apply the ‘slip rule’ in order to correct errors in decisions or orders of FWA. It was said:
‘In order to avoid unnecessary technicality, clause 602 allows FWA its own initiative or on application by a person, to correct or amend any obvious error, defect or irregularity in relation to a decision of FWA (including an instrument made by FWA). This clause is intended to be a statutory analogue of the 'slip rule' used by superior courts to correct certain errors in orders (see Re Timber and Allied Industries Award 1999 [2003] AIRC 1137 at [29]-[30]). This clause does not apply, however, to a modern award or a national minimum wage order’.
[19] The reference to the decision of Munro J in Re: Timber & Allied Industrial Award 1999 [2003] AIRC 1137 is referable to His Honour’s conclusions in that decision, particularly at paras 33-35 as follows:
‘The rule is concerned with a discretion, in the exercise of which considerations of fairness and the justice of the amendment are relevant. Because of the nature of the power, and circumstances in which it will be exercised, the Correction Order operates from the date of the earlier Order with retrospective effect, to make the corrected Order operate with full force as corrected.
Of particular relevance to the matter before the Commission, the slip and error rule enables a correction in the following circumstances:
·where there has been an unintentional omission in an Order or judgement of the Court;
·where an Order or judgment does not conform with the intention of the Court, and would have been made if the issue had been mentioned during the proceedings;
·where there are no material differences of opinion between the parties; it is not suitable to apply this rule where it concerns a matter of controversy; and
·where the error is manifestly clear; where an "officious bystander would reply when asked if the amendment was appropriate: `Of course'".
Similar principles prevail in Commission proceedings. As a matter of course, caution must be exercised when applying the slip and error rule. However, in the circumstances of this case the slip and error rule may be brought to bear. It may reasonably be surmised that the incorrect reference was due to a clerical or other like error; the omission of Regulation 131A was unintended; the substitution of Regulation 131A of the Workplace Relations Regulations for Regulation 131 of the Act gives effect to the intention of the Commission at the time the Award was simplified; there is no controversy between the parties that this is what was intended; it is an amendment consistent with an outcome that a Court might reach through construing the clause’.
[20] On its face this matter appears to be little more than a ‘storm in a teacup’. However, at its source, the issue appears to be a niggling snipe in the long running enmity between the AFAP and the AIPA - two employee organisations registered under the Fair Work (Registered Organisations) Act 2009. The correction sought by the AFAP will have no practical effect on either the operation of the Agreement to which the decision relates or the wider competing interests of the two employee organisations in the field. It would appear that the only effect of the correction is to give some comfort to a few of the Federations’ more enthusiastic members; although I have no direct evidence about this and only Mr Lutton’s submission in this respect. I also note that under the current legislative regime, employee organisations are not described as parties to agreements, but may merely seek to be covered by an agreement, pursuant to s 183(1) of the Act.
[21] In preparing my approval decision of the Agreement application, I had no reason to believe that the AIPA was not a bargaining representative on behalf of one, or more of its members, to be covered or able to be covered by the Agreement. Indeed, all of the relevant indicators were to the contrary. Regrettably, the employer’s F17 named both employee organisations as bargaining representatives for the Agreement. Moreover, at the hearing of the substantive application, on 21 December 2011, Mr Lutton for the AFAP took no objection to:
(a) The identification of the AIPA as a bargaining representative;
(b) the appearance of Ms K Gallagher for the AIPA;
(c) the submission of Ms Gallagher that the AIPA ‘was a bargaining representative during the course of negotiating this agreement’;
(d) the filing and service on all parties of the AIPA’s F18, supporting the application and wishing to be covered by the Agreement; and
(e) my ex tempore decision approving the Agreement, and pursuant to s 201(2) of the Act, noting that both employee organisations were to be covered by the Agreement.
[22] A review of the transcript of the proceedings on that day discloses a relatively straight forward enterprise agreement hearing, with not a hint of the controversy which my formal decision subsequently created.
[23] In light of the above considerations, I do not believe it would be appropriate to correct my decision in the manner sought by the AFAP. Just as my decision in the approval proceedings is publically available, this decision will also be in the public domain. It is not my intention to support any perceived leverage or advantage to one party or the other, particularly given the earlier position of the AFAP as recorded in para [18] above. The parties will no doubt adopt their own interpretation of this decision in light of their own respective interests. This decision itself will sufficiently clarify the factual matrix to the Agreement negotiations.
[24] However, even if I am wrong about this view, I find Mr Nolan’s submissions as to the purpose of s 602(2) of the Act, to be persuasive. In light of the authorities cited by Mr Nolan, particularly Munro J’s summation supra above, I do not accept that the error in the decision is so obvious that it is easily understood, clear, self evident or apparent. It is a matter of some controversy and as Mr Lutton himself observed, the correction sought is of some significance. When viewed in this context, the application of the ‘slip rule’ is not appropriate in this case.
[25] This application is dismissed. An order to that effect will accompany the publication of this decision.
DEPUTY PRESIDENT
Appearances:
For the AFAP: Mr S Lutton, General Manager of the AFAP.
For the AIPA: Mr Nolan, Counsel and Ms K Gallagher, Industrial Advisor for the AIPA
For Sunstate: No appearance
Hearing details:
SYDNEY
2012
22 March
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