Australian Federation of Air Pilots v Flight Crew Officers Industrial Tribunal

[1968] HCA 22

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Kitto, Taylor and Owen JJ.

AUSTRALIAN FEDERATION OF AIR PILOTS v. FLIGHT CREW OFFICERS INDUSTRIAL TRIBUNAL

(1968) 119 CLR 16

10 May 1968

Industrial Arbitration (Cth)—Aerial Navigation (Cth)

Industrial Arbitration (Cth)—Conciliation and arbitration—Industrial dispute—Award—Airline operating industry—Dispute about size of crew of particular aircraft—Minimum crew determined by Director-General of Civil Aviation—Reference of dispute to tribunal—Award incorporating previous agreement upon terms of employment—Prohibition of bans etc. upon work under award—Reservation of question of crew size—Whether award in settlement of industrial dispute—Conciliation and Arbitration Act 1904-1967 (Cth), ss.88H, 88U, 88Z. Aerial Navigation (Cth)—Air service operations—Powers of pilot in command—Number of crew for safe operation—Air Navigation Regulations (Cth), regs. 194, 225.

Decisions

May 10.
The following written judgments were delivered: -
BARWICK C.J. Prior to the commencement of the year 1966 the respondents, The Australian National Airlines Commission (T.A.A.) and Ansett Transport Industries (Operations) Pty. Limited of which Ansett-A.N.A. is a division, which respondents I shall refer to as the operators, proposed to introduce into use on the domestic airline routes of Australia, a type of jet aircraft known as DC-9 aircraft. Apparently these aircraft were designed for flight operation by a crew of two pilots. The Australian Federation of Air Pilots (the Federation), which is one of the prosecutors, thereupon objected to what has conveniently been called in these proceedings "the two-crew concept" for the operation of these aircraft stating that there should be a crew of three comprised of three pilots or two pilots and a flight engineer. Responding to this objection, which was claimed to be based upon general safety considerations relating to the aircraft, its passengers and crew, the Director-General of Civil Aviation (the Director-General) undertook an investigation of the two-crew concept and, as well, of the experience of its operation in America whence the aircraft originated and where a considerable number of them was then and still is in regular use with a crew complement of two pilots. There is no need to detail the nature and extent of the Director-General's investigation in which the Federation participated. Suffice it to say that on 14th July 1966 the Director-General notified to the operators and to the Federation his conclusion, arrived at as the result of the investigation, that "there is no justification on safety grounds for requiring the DC-9 aircraft to be operated by other than a two-pilot crew for which it has been carefully and specifically designed". (at p20)

2. Subsequently, in response to a reiteration by the Federation of its views on the necessity for a crew complement of three and, after consideration of them, the Director-General affirmed his previously communicated conclusion. (at p20)

3. Later still in 1966 it was agreed between the operators and the Federation that an evaluation be made of all phases of crew work load on the DC-9 aircraft, considering various crew configurations. In the formal agreement dealing with this matter, which was subsequently executed (14th April 1967), it was provided that:

"7. Rates of pay, rules and working conditions, relative to DC9-30 aircraft which are open for discussion in terms of cl. 23A - New equipment, in the current agreement, shall remain open without prejudice pending the completion of the evaluation project. The Federation accepts without prejudice in the meantime, pay calculations flowing from the weight/speed formula and other factors in the current agreement." (at p20)

4. Meantime an agreement known as the Airline Pilots' Agreement 1966 (the Agreement) had been negotiated between the operators and the Federation. Though actually executed on 3rd May 1967 it was treated as operating as from 1st November 1966. I understand it to be the Agreement referred to in cl. 7 of the evaluation agreement which I have just set out. The Agreement purported to regulate the remuneration and other terms and conditions of employment of pilots employed by either of the operators, with the exception of certain reserved matters. One of these matters expressly reserved was the question of the crew complement of DC-9 aircraft (see cll. 23 (A) and (B) and Pt III C (2) (e) of the Agreement). (at p20)

5. Before dealing with the construction and operation of the relevant parts of the Agreement, I should call attention to the constitution of the Federation. It is an unincorporated association of air pilots with a written constitution and by-laws of which a copy is in evidence in these proceedings. Its principal objects are:

"3. (a) To protect and further the interest of the profession of Air Pilots, and to safeguard and improve the interests and rights of members of the Federation. (b) To secure the elevation of the Profession of Commercial Air Pilots, and to improve the terms and conditions of their employment. (c) To take any lawful action deemed desirable for the benefit and advancement of Members subject to approval of the Executive Committee. (d) To afford legal protection for its members in Industrial Matters, or other matters specifically authorised by the Executive Committee. (e) . . . . (f) . . . . (g) To take any lawful action deemed desirable to further the interests of commercial aviation." (at p21)

6. Thus, it may be said that the Federation is an association for the promotion and protection of the industrial rights and interests of airline pilots. Notwithstanding the seeming width of par. (g) above, it is not an association for the protection of the public interest. Its activity therefore in connexion with the determination of the crew complement of an aeroplane in commercial service, whatever protestation may have been made to the contrary, was and is primarily, if not indeed exclusively, and, of course, in any case quite properly, directed to obtaining proper and safe working conditions for its pilot members. Therefore, a demand by the Federation upon the operators that they should not operate the DC-9 aircraft with a crew complement of two pilots can only be regarded as a demand that it should be a term of the pilot's employment that he should not be required to fly a DC-9 aircraft unless there be a crew complement of three, three pilots or two pilots and a flight engineer. In other words, it would be an industrial demand apt to create an industrial dispute if denied by the operators. (at p21)

7. It is now convenient to recite the events which have led to the making of the present application in which the prosecutors seek a writ of prohibition to restrain further proceedings upon an award made by the Flight Crew Officers Industrial Tribunal (the Tribunal) established by s. 88J of the Conciliation and Arbitration Act 1904- 1967 (Cth). The Award was made on 1st March 1968 and is known as the Air Pilots' Interim Award 1968. The grounds of the application are:

(1) That no industrial dispute within the meaning of ss. 88H and 88U at any relevant time existed for settlement by the Tribunal. (2) That the Award sought to be made the subject of prohibition was not made in settlement of any such industrial dispute. (3) That the purpose of the Tribunal in making the Award was not then settlement of any such dispute.

The question, and the only question raised by the application, is the validity of the Air Pilots' Interim Award. (at p22)

8. The evaluation made in pursuance of the Agreement made in 1966 between the operators and the Federation did not result in any agreement as to the crew complement of the DC-9 aircraft. Consequently, that remained a reserved matter under the Agreement. (at p22)

9. By notice of 7th December 1967 published in the Government Gazette of 20th December 1967 the Minister for Labour and National Service declared the Federation to be a declared body to which s. 88Z of the Act applies. Therefore certain sections of the Act had effect as if the Federation were an organization under the Act. As a result the Federation became capable of being a party to an industrial dispute within ss. 88H and 88U of the Act and of being bound by an award made by the Tribunal. On 20th December 1967 the Federation informed the operators in writing of its final view on the question of what was a necessary crew complement for the flight operation of the aircraft. I set out in full the terms of that communication:

"Final consideration has now been given to the Federation's position in respect of the DC.9 crew complement. "You will be aware that, in addition to the information gained from the recently concluded evaluation program, the Federation has studied reports and opinions on this matter from many overseas sources. "All of these have confirmed our original decision that the crew complement of the 'light' jet aircraft, should be two pilots and a system specialist drawn from qualified flight engineers. "Accordingly, we have now to formally advise, that the Federation will expect that, by 30th April 1968, DC.9 aircraft will be crewed in this manner. "It is understood that D.C.A. will be convening a meeting of interested parties in the near future, at which or following which, the Federation will decide the date at which the operation of the aircraft on a two pilot crew basis will terminate. From that date, up to 30th April, the aircraft will be crewed by either three pilots or two pilots and a flight engineer." (at p22)

10. On 24th January 1968 the Director-General in a lengthy communication to the operators and the Federation disclosed the results of a still further evaluation he had made. Significant aspects of these results were that:

(1) "The overall analysis of the evaluation returns shows that a substantial majority, near ninety per cent, of two-pilot crews, were satisfied with this two-pilot operation"; (2) "In the light of all the evidence before me at this time, I am convinced that there is no justification for demanding a crew of more than two pilots and I therefore confirm that the minimum operating crew on the DC.9 aircraft shall be two pilots"; (3) "On the other hand I believe the evaluation has also shown that the presence of a third crew member who is specifically trained for and assigned limited duties such as those which applied to the evaluation, does not prejudice the safety of operation of the DC.9. In the light of this evidence, I am prepared to vary the restriction which I placed on the DC.9 crew complement by the terms of my letter to the A.F.A.P. on 29th September 1966, so as to permit a third crew member to be carried if the operators see any need to do so." (at p23)

11. At a conference held between the operators and the Federation subsequent to this last decision of the Director-General, the Federation refused to accept the two crew concept for the aircraft and indicated that the deadline date for the acceptance by the operators of the three crew concept was 1st March 1968. (at p23)

12. On 21st February 1968 the Federation notified its members that
"Federation approval for limited two crew operation of the
DC.9-30 for evaluation purposes is hereby withdrawn and from the 1st March 1968 the DC.9-30 aircraft will revert to three crew operation in accordance with the policy of your federation. . . . By authority of the Executive Committee resolution quoted you are hereby advised that on the simple grounds of the safety issues involved you are to operate the DC.9-30 from 0001 hours on 1st March 1968 with three indorsed crew members, and are to refuse to operate the aircraft with any lesser crew complement." (at p23)

13. Meantime, on 21st February 1968, the operators anticipating the action of the Federation to which I have just referred, orally notified the Tribunal of an industrial situation in which they were apprehensive that a ban or limitation on work might be "implemented" by the Federation. This reference the operators confirmed in writing on 22nd February. In that writing the operators set out in full the events and correspondence to which I have briefly referred. The notification did not specify any particular dispute as having arisen: it merely sought of the Tribunal such order or award as was within its jurisdiction "to ensure continuity of work and to protect obligations to keep faith with the travelling public and carry out commercial and other activities". But the Tribunal had the necessary material in the notification upon which to identify any industrial dispute which had in fact arisen and which was thereby evidenced. (at p24)

14. It is now appropriate to return to the Agreement. Were the operators and the Federation thereby in agreement as to terms of employment of pilots in so far as they related to the air crew complement of the DC-9 aircraft? In my opinion, quite clearly they were not. Clause 7 of the evaluation agreement made in 1966 shows plainly enough that this was so, as do the clauses of the Agreement which reserve this very question. Indeed it would be more than strange to conclude that having consistently resisted the two crew concept for the operation of the aircraft the Federation agreed to an employment obligation on the part of the pilots to operate with no more than a crew of two. The Agreement operated as from 1st November 1967, yet on 20th December 1967 the Federation was asserting its refusal to go along with the two crew concept for the flight operation of the aircraft. In my opinion, under the Agreement, the operators could not have required the pilots to operate the DC-9/30 aircraft with no more than a crew of two, or for that matter at all: nor would it have been a cause for dismissal of a pilot that he had refused to operate the aircraft: he would not have been disobedient to an order lawfully given within his employment. (at p24)

15. It therefore appears to me to be inescapable that, at the date of the operators' notification to the Tribunal, the parties were in disagreement as to the extent of the employment obligation of the pilots in respect of the flight operation of DC-9/30 aircraft. The existence of this dispute was fully evidenced by the operators' notification. That such a dispute if it existed was an industrial dispute is to my mind beyond controversy. That such a dispute would be a dispute within ss. 88H and 88U of the Act is, in my opinion, equally incontestable. (at p24)

16. It seems to me therefore that the correct analysis of the situation as at the time of the notification under s. 28 of the Act is that on the one hand the Federation as representative of its pilot members was demanding of the operators the inclusion of a term in their pilots' employment to the effect that the pilots should not be required to operate DC-9/30 aircraft with a crew complement of only two pilots and that on the other hand the Federation, by this time having become an industrial entity separate from its members by virtue of the declaration made under s. 88Z of the Act claimed to be entitled to direct the pilot employees of the operators not to agree to fly such aircraft with such a crew complement and not in fact to do so. The operators had not acceded either to the demand or the claim of the Federation. So far from agreeing, the operators had sought an award to obviate the threatened industrial action to enforce the Federation's demand. The operators' action in making the reference to the Tribunal was, in my opinion, clearly based upon a tacit assumption that the aircraft should be flown by the pilots with a crew complement of two pilots. (at p25)

17. If I am right in thinking that as at that date the operators could not have insisted upon the pilots flying the aircraft with a crew complement of two pilots consistently with the terms of the Agreement, the Federation's representative demand, when denied by the operators, gave rise, in my opinion, to a relevant industrial dispute. Further, whether or not my analysis of the contractual situation is correct, there is the possibility that the claim of the Federation to direct the pilots in the employ of the operators not to work as requested by the operators, a claim which the operators contested, itself gave rise to an industrial dispute between the operators and the Federation. Such a claim is not to be, in my opinion, confused with a stoppage of work which is clearly not itself an industrial dispute. But, having regard to the views I have found upon other aspects, I have no need to pursue these aspects of this case. I will proceed to follow the course of what I consider to have been an industrial dispute arising out of the Federation's representative demand. (at p25)

18. Section 28 (2) of the Act, made applicable to the Tribunal by s. 88V, read with s. 32, requires the Tribunal where it is notified of an industrial dispute to settle it. In my opinion, upon receipt of the operators' notification, the Tribunal came under this duty. Unless the dispute was thereafter settled by the parties, the Tribunal's subsequent award should not be held invalid for want of a foundational dispute, i.e., for lack of jurisdiction to settle it. (at p25)

19. The matter came before the Tribunal on 26th February and subsequent days. Both parties took the stand before the Tribunal that the Tribunal was not competent to decide what each party described as "the safety issue", meaning thereby as I understand the matter what I shall call the abstract question whether or not the two crew concept for the flight operation of the DC-9/30 aircraft was safe for the aircraft, passengers and crew. This, as the parties sought to submit it, was a public and not an employment issue. Regarded as a matter independent of the employment of the pilots and in discussion between others than employers of the pilots and their representative, so it possibly could be. Further, so regarded, it would have been a question which the Tribunal could not have decided. Indeed, that matter had already been finally decided by the only authority competent to decide it, namely, the Director-General. (at p26)

20. Of course a notified dispute may be settled by the parties and the jurisdiction of the Tribunal to make an award thus denied. But submissions and arguments of parties before an industrial tribunal which do not amount to a settlement of the notified dispute, assuming it to be in fact a relevant dispute, will not, in my opinion, preclude the settlement of that dispute by the Tribunal: nor relieve it of the duty of doing so. They may possibly evidence a new and additional dispute but that is another matter which does not arise here. Nor can the dispute be confined to what the parties thought it was. The public interest in the settlement of what was in fact the dispute must be borne in mind. Sections of the Act such as ss. 28, 31 (3), 34 (2) and (3) and 36 reflect this circumstance. Consequently, granted that there was an industrial dispute in fact existing at the time of the notification, the attitudes, the submissions and the arguments of the parties before the Tribunal will not alter it or affect the jurisdiction of the Tribunal to make an award in its settlement except in so far as the parties thereby settle it in whole or in part. It was not suggested in this case, and after close reading of the transcript of the proceedings before the Tribunal, it could not, in my opinion, be suggested that the parties did at any time settle in whole or in part the dispute which I think existed as to the terms of the employment of the pilots in relation to the operation of DC-9/30 aircraft. (at p26)

21. There being, in my opinion, a relevant industrial dispute, the remaining question in relation to the validity of the Tribunal's award is whether the award was made to settle, and in terms appropriate to settle, that dispute, the settlement being confined within the ambit of the dispute. That question in the first place will be answered by consideration of the terms of the award itself properly construed. The Tribunal in making its award took the highly unsatisfactory course of saying that its reasons for making it would be found in the transcript of the proceedings before it. That I may say in passing is not the only unsatisfactory feature of this case. To my mind, the application of a modicum of basic knowledge of this area of law to what after all was a simple industrial situation would have avoided this application and the absurd situation into which the parties and the industry in which they are engaged were allowed to drift. However, a perusal of the transcript does not really disclose reasons for decision. To its contents I shall later refer in another connexion. For present purposes the transcript can be said to contain the exchanges between the Tribunal and the parties and the en passant expressions of view of the Tribunal, to some of which no doubt the Tribunal ultimately adhered. (at p27)

22. As well as making this reference to the transcript, the Tribunal published a "decision". To its terms I shall also later refer. But, whatever the reasons, whether found in the decision or dredged up out of the transcript, they may not, in my opinion, govern the construction of the award which the Tribunal made. It is not what the Tribunal thought or said in the reasons it was awarding which is definitive of the rights of the parties but what according to the proper construction of the document the Tribunal did award. (at p27)

23. The Tribunal could not have made an award which was in conflict with the Air Navigation Regulations: s. 88ZC of the Act. Nor, as I have said, could the Tribunal decide as an abstract question whether the safety of the aircraft and the passengers required a crew of more than two. But after the decision of the Director-General communicated on 24th January 1967 but subject to the contents of the airworthiness certificate of the aircraft, I do not see any reason why the Tribunal should not have ordered that it be a term of the employment of a pilot that the pilots be not required to operate a DC-9/30 aircraft except with a crew complement of three if the safety of the pilot himself in working with a crew of only two pilots or the added work load cast on him by such crew complement were the ground for taking that course. Such an award would not, in my opinion, be in conflict with the Air Navigation Regulations. But, whilst an award that a pilot should not be required to work a DC-9 aircraft with a crew of only two would not necessarily be inconsistent with the Air Navigation Regulations, the Tribunal could not have made such an order if it would thereby have merely been entering the area of management, that is to say, if there were no reasons connected with the work of the pilot himself which founded such an award: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Melbourne and Metropolitan Tramways Board (1966) 115 CLR 443 . (at p27)

24. The award that was made was made substantially in the same terms as some of the provisions of the Agreement but without its reservations. It was made binding upon the Federation as well as upon its members engaged in the occupation of pilot. The significant portions of it are as follows:

"CLAUSE 4 - CONTRACT OF EMPLOYMENT A. The employer may employ its pilots and the pilots shall serve the employer in any part of the world where that employer may from time to time be operating, in accordance with the provisions of this Award." "CLAUSE 7 - GROSS HOURLY PAY - CAPTAINS In addition to Base Pay (Clause 6), each pilot when serving as a Captain shall be paid hourly type pay as follows - " (at p28)

25. Then follows a list of aircraft types with rates of pay against each. Included in that list of aircraft types was the DC-9/30 aircraft.

"CLAUSE 14 - PROHIBITIONS OF BANS, LIMITATIONS, OR RESTRICTIONS: (i) The Australian Federation of Air Pilots shall not in any way, whether directly or indirectly be a party to or concerned in any ban, limitation or restriction upon the performance of work in accordance with this Award. (ii) The Australian Federation of Air Pilots shall be deemed

to commit a new and separate breach of the above subclause on each and every day in which it is directly or indirectly a party to such ban, limitation or restriction." (at p28)

26. It was an interim award, and purported to cover only a portion of the area of the employment relationship of the operators and the pilots. It would not be impossible to allow an agreement as to other rights and obligations to stand side by side with an award covering some rights and obligations of the employment though problems are thus created, for circumstances will arise when the inter-relationship of the two instruments must be determined. Somebody is then left with the determination of what part of the agreement, and in what sense, it remains operative. But untidy and clumsy though such a situation may be, and however needless it was in this case if a few fundamentals had been observed, the co-existence of the two instruments does not, in my opinion, directly bear on the validity of the interim award. (at p28)

27. Unfortunately, in this case, the simple course of expressing explicitly in the award what it intended was not taken, and we are left to construe the award against the background of a number of facts. Most importantly, the award was made against the background of the Air Navigation Regulations and the decisions of the Director-General thereunder. The award provides that the pilots shall serve the operators. The award includes the DC-9 in the list of aircraft in respect of which it fixes hourly rates of pay. It seems to me therefore that, upon ordinary rules of construction, cl. 4 of the award when expanded means that the employer may employ its pilots in the operation of DC-9 aircraft and the pilots shall serve the employer in the operation of DC-9 aircraft. In my opinion, therefore, on its proper construction the award made it a term of the employment of the pilots that they should fly DC-9 aircraft at the request of an operator made conformably to the Air Navigation Regulations and the directives thereunder. That is to say, the outstanding dispute between the two parties was, in my opinion, resolved pro tem. by the interim award. Once the award was made in these terms, the pilots, in my opinion, were bound as a term of their employment and by virtue of the award to fly these aircraft with a crew complement of only two. After the making of the award it would not only have been lawful for the operator to operate a DC-9 aircraft with a crew complement of two, but an order by the operator to a pilot to fly with a full complement of two would have been a lawful order within the employment of the pilots and a refusal by a pilot to obey such an order would have been in breach of the award. To fly the aircraft with such a crew complement would be to perform work in accordance with the award. As I have indicated, the Tribunal included in the award a provision in a form commonly known as a bans clause: see cl. 14. It purported thereby to bind only the Federation. If cl. 4 upon its true construction did not require the pilots whilst employed by the operator to fly DC-9/30 aircraft with a crew complement of two pilots, there was no immediate significance in the bans clause. In terms it dealt only with the performance of work in accordance with the award. But quite clearly it was awarded as a means of precluding the Federation from pursuing its direction to the pilots not to fly the aircraft with a crew complement of two pilots. Therefore, unless the award upon its true construction prescribes that the pilots shall fly the aircraft in accordance with the minimum standards set by the Director-General, the bans clause has no operation at all in relation to the DC-9 aircraft. Consequently, in my opinion, the presence of the bans clause in the award reinforces the construction which I would otherwise put on the other portions of the award. On that footing, upon the authorities as they exist, the bans clause was valid as a provision to protect the settlement effected by the award. If there were no more to the matter, I would conclude that for these reasons the interim award was valid. (at p29)

28. But it is necessary to deal with the submission that the Tribunal in making the interim award did so to achieve an inadmissible purpose and not to settle an industrial dispute. It is in this connexion chiefly that I have the misfortune to disagree with some members of the Court. (at p29)

29. The transcript of the proceedings was admitted in evidence and examined in extenso. Its contents as I have said cannot be resorted to in aid of the construction of the award however clearly it might emerge from these contents that the Tribunal did not itself intend the meaning which the award upon its proper construction must bear. But the transcript may be looked at to determine whether the award properly construed was made for or to achieve a wrong purpose. (at p30)

30. I think it may fairly be said that the transcript of the proceedings shows that the Tribunal did not identify for itself the industrial dispute between the parties which, in my opinion, existed: it did not, nor did either of the parties, examine the contractual situation between them - a situation with which they both professed to be satisfied; though in this connexion I cannot conceive that they failed to be conscious of the reservations contained in the Agreement. Their satisfaction I think only extended to those matters about which they were in truth in agreement. It emerges that the advocate for the operators, exhibiting a singularly incomplete knowledge of this area of law was anxious to dress up some provision of an award in order to warrant the inclusion of a bans clause, a matter which undoubtedly was the principal matter in debate before the Tribunal. Then it is also quite clear from the transcript that the Tribunal thought, quite erroneously, that the making of any award by it would open the way for the resolution of what was called "the safety issue" by some other authority or Tribunal. (at p30)

31. The Tribunal acceded to the proposition of the parties that "the safety issue" was not one which it could resolve but, in my opinion, as between these parties, the issue was an employment issue and nothing else. The Tribunal must be credited with having accepted the parties' view in this respect with hesitation and without conviction. But that it did so has provided the ground of the submission that the award was made solely to provide a vehicle or platform for the resolution of "the safety issue" by some other authority or Tribunal. But even if it were possible to extract, as between these parties, the so-called "safety issue", the industrial issue as to what should be the relevant terms of the pilots' employment would remain. (at p30)

32. But do these mistakes and misconceptions of the Tribunal matter, if upon its proper construction the award is apt to settle an existing industrial dispute within the scope of the Tribunal's jurisdiction? We are not here dealing with an appeal the result of which may be influenced by the way the parties conducted their case or by the mere errors in law of a Tribunal in arriving at a conclusion. It is the validity of the award as properly construed which is in question: and indeed nothing else is in question. The Tribunal clearly had no improper motive: it did think it was settling an industrial dispute. In my opinion, it does not matter in point of validity that it misconceived what that dispute was: nor does it matter in point of validity that the words it used in its award carry a meaning which it did not intend or that the Tribunal wholly misconceived the effect of its award. In my opinion, the evident misconceptions of the Tribunal do not amount to side or improper motives, or to the pursuit of purposes alien to the exercise of the power to settle an industrial dispute by arbitration. (at p31)

33. Consequently, though of course I feel the force of the unwarranted expectation of the Tribunal and of the exposure of its lack of understanding of the fundamental doctrines of this branch of the law, I do not feel justified in holding that the award was made in abuse of the power given to the Tribunal to settle certain industrial disputes by arbitration, or in order to attain inadmissible purposes. (at p31)

34. Before leaving the matter, I would like to add that, in my opinion, the contention of the Federation before this Court that, notwithstanding the directive of the Director-General as to the minimum safety requirements in respect of an aircraft's construction, maintenance and crew complement, a pilot as the Captain of the aircraft has a discretion to refuse to fly the craft because he is personally in disagreement with the Director-General is completely without foundation. The pilot, in my opinion, has in law no such discretion. Further, and it should be scarcely necessary to add this, the Federation has no power or authority derived from its constitution or elsewhere to direct the pilot not to fly an aircraft in the exercise of any such supposed discretion. (at p31)

35. In my opinion, the application should be dismissed. (at p31)

McTIERNAN J. I am of opinion this motion should be dismissed.
The Air Pilots Interim Award 1968 which is in issue is expressed to be binding on the applicant Federation and its members engaged in the occupation of pilot. The second and third respondents are also parties to the award. The Federation is not an incorporated body but being a "declared body" for the purposes of Pt IIIA of the Act the Federation is capable of raising an industrial dispute to which the provisions of the Part apply and of being a party to a proceeding thereunder: Reg. v. Dunlop Rubber Australia Ltd.; Ex parte Federated Miscellaneous Workers' Union of Australia (1957) 97 CLR 71 ; and Reg. v. Portus; Ex parte McNeil (1961) 105 CLR 537 . (at p31)

2. In instructing its members to refuse to fly the DC-9 aircraft after 1st March 1968, on which two pilots only are engaged by either respondent, the Federation in my opinion raised a dispute as to an "industrial matter" to which the powers conferred on the respondent Tribunal by Pt IIIA extended. The definition of "industrial matters" in that Part is "all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, flight crew officers employed or to be employed by employers"; s. 88H. The dispute raised by the Federation's directive to its members who were flight crew officers affected or related to their work of flying the aircraft in question. This work was within the scope of the Airline Pilots' Agreement 1966. This agreement operates as a contract of employment between the pilots individually and their respective employers. Clause 6A of the Agreement provides as follows:

"The employer may employ its pilots and the pilots shall serve the employer in any part of the world where that employer may from time to time be operating, subject to the provisions of this Agreement."

It is not a breach of the agreement by either employer to engage only two flight crew officers for work on a DC-9 aircraft; nor is it inconsistent with the Air Navigation Regulations to do so. Pending the Federation's directive becoming operative it imperilled the peaceful industrial relations subsisting between the pilots and their employers under the agreement. The Federation's action in issuing the directive could mean to the employers nothing other than that the Federation was demanding that a condition suitable to its directive be added to the contractual relations between the employers and their pilot employees under the agreement. It was a proper way to settle the dispute raised by the directive for the respondent Tribunal to embody the terms and conditions of the agreement in an award but omitting from the award a condition as to the crew complement demanded by the Federation. The bans clause in the award is defensible as a measure to protect the settlement of the dispute brought about by the award. (at p32)

3. In my opinion the award is a valid exercise of the power of the respondent Tribunal. (at p32)

KITTO J. The Flight Crew Officers Industrial Tribunal, constituted by a person appointed to that office under the provisions inserted into the Conciliation and Arbitration Act 1904-1966 (Cth) by the Conciliation and Arbitration Act 1967 (Cth), has purported to make an interim award as to the terms and conditions of employment of air pilots, being members of the prosecutor Federation, who are employed by the Australian National Airlines Commission or by a division, known as Ansett-A.N.A., of Ansett Transport Industries (Operations) Pty. Limited. The prosecutors contend that the making of the award was beyond the authority of the Tribunal, and ask that further proceedings upon it be prohibited. (at p33)

2. The Tribunal possesses no relevant power under the section unless it be the power under s. 88U to consider and determine "industrial questions" so far as the "industrial matters" relate either to the employment of flight crew officers (i.e., persons performing duties as pilots, navigators or flight engineers) by the Australian National Airlines Commission, or to trade and commerce among the States, and to prevent or settle, by conciliation or arbitration, "interState industrial disputes". An "industrial question" means a dispute or question as to industrial matters, including an interState industrial dispute; and "industrial matters" means all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, flight crew officers employed or to be employed by persons employing flight crew officers in the course of a business of which the principal place of control is not outside Australia. An "inter-State industrial dispute" means (with an immaterial exception) a dispute as to industrial matters that extends beyond the limits of any one State. It should be said that the employment of flight crew officers by Ansett-A.N.A. is in trade and commerce among the States, and that the principal place of control of the business is in Australia. (at p33)

3. The prosecutors contend that the interim award was not made as a determination of any industrial question or in settlement of any industrial dispute and was therefore not authorized by s. 88U. It was made, they say, as a restatement in the form of an award (with one addition) of certain of the provisions of an Agreement which had been made between the Federation and the employers in 1966, and there was no dispute as to any of the matters dealt with in the provisions which were thus restated. The single added provision was made not to settle any dispute, but to enable a question of interpretation to be decided by a court in judicial proceedings. (at p33)

4. The occasion of the Tribunal's intervention was a threat by the Federation to direct its members, being pilots in the employment of the two employers above-mentioned, not to fly DC-9 aircraft with fewer than three air crew officers. The Federation was maintaining not only that the flying of DC-9s was unsafe without three pilots or two pilots and a flight engineer on the flight deck, but also that a pilot was entitled as against his employer to refuse to fly the aircraft if in his opinion to do so was unsafe with fewer than three flight crew members. The respondent employers were denying both propositions; they were maintaining that it was safe to fly the aircraft with two pilots only, and that a pilot, while he remained in their employment, was bound to fly the aircraft, if instructed by them to do so, with such number of crew members as the Director-General of Civil Aviation should have ruled was the minimum necessary for safety. The Director-General had ruled (in effect) that to fly with two pilots only was safe, but that it was not unsafe (subject to conditions that are immaterial) to have a third crew member; but the Federation contended that this ruling related only to the minimum safety requirements of the Air Navigation Regulations, that it had therefore no greater effect than to preclude both employers and pilots from operating aircraft with fewer than two crew members, and that it left each pilot commanding an aircraft with the right and obligation to refuse to fly if he should consider that the crew was insufficient in numbers for safety. (at p34)

5. The question whether it was in fact unsafe to fly DC-9s with fewer than three flight crew officers was obviously not an industrial question, and the dispute upon it was not an industrial dispute. The question whether the pilots' terms of employment obliged them to fly the aircraft with the minimum crew permitted by law when required by their employers to do so depended upon the true interpretation of the terms of employment, including the terms of the Agreement that has been mentioned and the relevant provisions of the Air Navigation Regulations, and it was, therefore, a question for judicial and not arbitral determination. It is true that the Agreement (cl. 23B) had reserved the question of "crew complement" in relation to DC-9 aircraft, but I should understand this to mean only that the Federation was not precluded by the Agreement from raising the topic of crew complement for DC-9s during the currency of the Agreement as a topic proper for further negotiation. If that was the effect of the reservation there was room for a dispute to arise upon the question whether there should be added to the terms of employment a provision requiring the employers to assign three flight crew members for every DC-9 flight. But such a dispute had not arisen. Each side was standing firmly upon its own interpretation of the Air Navigation Regulations and the terms of employment as they stood, each contending that what was referred to as "the safety issue" was not within the Tribunal's province. The Tribunal, though apparently with some doubt, accepted this contention and turned to consider, as a distinct matter, whether it could do anything to keep the DC-9s flying, by stopping the Federation from carrying out its threat to direct pilots not to fly them unless three air crew members were provided. The threat was completely inconsistent with the Federation's own contention that the commanding pilot of an aircraft had the responsibility of deciding what crew was needed for the safety of the flight, for it amounted to saying, as indeed counsel for the Federation made clear before this Court, that the decision would not be left to the commanding pilots: it had been made for them by the Federation, and, as I understood counsel to indicate, by a majority and not a unanimous vote. But what is important on the present application is that the Federation's threat is to be distinguished from the demand for three air crew members which lay behind it. Carrying it into effect would create industrial disruption, but not an industrial dispute susceptible of arbitral settlement. It seems necessary to repeat that industrial disruption, or a threat of such disruption, is not a dispute, though it may be and usually is the product or the evidence of a dispute. Consequently a power to settle disputes can never validly be exercised to deal with the disruption or threat of disruption as if it were itself a dispute to be settled. The power must be exercised, if at all, by dealing with the matters in difference which lie behind the disruption or threat, and then a bans clause may be added to make the settlement more effective. These are trite propositions in industrial law. (at p35)

6. Notwithstanding the absence of an industrial dispute, however, the employers were sufficiently ill-advised to call upon the Tribunal to intervene by laying upon the Federation a prohibition against being a party to or concerned in any ban, limitation or restriction upon the performance of work of the pilots. Perceiving, or at least having some vague notion, that this could not be done unless incidentally to the making of an award, they set themselves to get something that would look like an award. They invited the Tribunal to make "an interim award" embodying such of the existing terms and conditions of employment of pilots by the employers as should be thought appropriate in respect of a short period, and to add a bans clause as ancillary to that award. They stressed again and again that they had no wish or intention to depart in any respect or degree from the provisions of the subsisting Agreement. They even promised that they would treat the Agreement as continuing to regulate the employment of the pilots, in the sense that if there should appear any inconsistency between the award and the Agreement the latter should prevail. With quite amazing naivete they thus sought an award which should be no more than a "vehicle" for the bans clause, and actually submitted a draft award differing in some details from the Agreement, not because they wanted to depart from the Agreement in any respect, but because they wanted to create a semblance of a dispute and so give an award an appearance, a false appearance as it would necessarily be, of settling a dispute. Indeed they invited the Federation's representatives to say before the Tribunal that they would not agree to the apparent departures from the Agreement, so that there might appear to have been something like the service and rejection of a log of claims. All this was a pretence, and a necessarily unsuccessful pretence, for it was apparent to everyone that no dispute existed upon a single topic with which the draft award purported to deal. (at p36)

7. Unfortunately the gentleman who constituted the Tribunal took the view that if he should make the proposed award containing the bans clause, and if the Federation should thereafter be prosecuted for breach of that clause, the Court hearing the charge would be in a position to decide upon the true interpretation of the Agreement and the Regulations whether a pilot had the right to refuse to fly a DC-9 aircraft with only one other crew member if he considered that safety considerations called for two. Taking this view, the Tribunal thought, in all good faith no doubt, that by adopting the course the employers' representatives proposed a peaceful solution of the trouble might be facilitated. (at p36)

8. Accordingly the Tribunal delivered a document headed "Decision", which announced that the proposed "award" would be made, but showed beyond doubt that the purpose of making it was not that it should by its own force settle anything. The Decision began by describing what the employers sought (and in truth describing it exhaustively) as an award which would include (a) some of the conditions of employment of air pilots on the basis of the existing agreement, and (b) a clause prohibiting bans, limitations or restrictions of work. It specifically stated that because of the parties' "strong insistence" that the safety issue was not for the Tribunal it had decided to confine itself to the area delineated by the parties, and "to convert sections of the current Agreement into an Interim Award of this Tribunal and in addition to include a bans clause in such an Award". The error that was being made was revealed in a statement in the Decision in these terms:

"I believe there is a genuine industrial dispute even on the very question of whether this Interim Award on the terms of employment should be made at all and whether it should contain a bans clause."

The word "even" is curious in this context, for no other question was suggested. Of course a disagreement merely as to whether an award shall be made is not an industrial dispute, for it is not a dispute on an industrial matter, and therefore cannot suffice to support an award: see Reg. v. Graziers' Association of N.S.W.; Ex parte Australian Workers' Union (1956) 96 CLR 317, at p 337 ; Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Printing Industry Employees' Union (1964) 109 CLR 544, at p 556 . Two short passages may be quoted from the Decision as showing that the Tribunal was making the award not for the purpose of determining any arbitral question but for the purpose of trying to force a judicial question into a court having jurisdiction to decide it. First:

"I am not committed to any interpretation of the safety issue but am simply clearing the way for it to be resolved if necessary by the Industrial Court or the High Court."

And again:

"The safety issue is a subject which could recur in this industry over and over again; and it is well that the rights of the parties should be clearly tested in the appropriate courts of the land as soon as possible." (at p37)

9. The fatal objection to the validity of the purported award thus emerges, as I think, starkly. The award was not made in order to settle any industrial dispute, and it was therefore beyond power. A suggestion has been put forward that it in fact added something to the existing terms of employment under the agreement by providing expressly that the pilots should serve their employers. This means, it is said, that they must serve in accordance with all lawful orders, including all orders to fly the aircraft contemplated by the award (which include DC-9S) with crews satisfying the minimum requirements of the Director-General under the Regulations. It is true that the agreement had not made such an express provision, and that it contained the reservation I have mentioned as to DC-9 aircraft; but the contract of employment of each pilot necessarily implied, even if it did not say so expressly, that the pilot would obey all lawful orders of his employer, and I see nothing in the Agreement to exclude from the category of lawful orders, pending further negotiations, an order to fly DC-9 aircraft, consistently with the Air Navigation Regulations, with two pilots but without a third air crew officer. I do not see any departure in the award from the pre-existing terms and conditions of employment. If there is any it is a mere accident of drafting, and in my opinion it leaves the award as a whole invalid for the reason that it was not made as a means of settling any industrial dispute, but was made for a purpose outside the Tribunal's authority. (at p38)

10. In my opinion an order absolute for prohibition should go. (at p38)

TAYLOR J. In these proceedings the prosecutors seek to prohibit the respondents from further proceeding upon an award made on 1st March 1968. The award, known as the Air Pilots Interim Award 1968, was made by the Flight Crew Officers' Industrial Tribunal - constituted by the Conciliation and Arbitration Act 1967 (Cth) - after it had been notified by the respondents, the two airline operators, of a situation which was "likely to give rise to an industrial dispute". This notification, which was unduly discursive, was given in writing on 22nd February 1968. It referred to the history of the dissatisfaction of the prosecutors with the airline operators' proposal for the manning of DC-9 aircraft and to the prosecutors' contention that considerations of safety required that such aircraft should be manned by a three-man operating crew, to the fact that such aircraft had been operating provisionally with a two-man crew and that the Federation had indicated to the operators that it would expect that as from a date to be fixed all DC-9 aircraft would be manned by two pilots and a flight engineer. In these circumstances the respondents expressed their apprehension that a "ban or limitation on work" might be imposed by the prosecutors and they requested the Tribunal to make such order or award as would ensure continuity of work. (at p38)

2. Four days later representatives of the parties met before the Tribunal and the proceedings were continued on 29th February and 1st March. On the first of those days it was made clear that the Federation had informed the operators that as from 1st March 1968 they would insist upon a "full three crew operation . . . with three indorsed pilots and full three crew operation with a systems specialist drawn from the flight engineers ranks by 1st June 1968". It also appeared that the prosecutors had instructed their members that as from 1st March 1968 they should only operate DC-9 aircraft with three crew members and refuse to operate them "with any less crew complement". (at p38)

3. The Tribunal's power to make an award prescribing conditions of employment depends upon the existence of a relevant industrial dispute, that is to say, a dispute as to an industrial matter or matters as defined by the Act. But whether the dispute between the parties in this case was a dispute of this character is open to question. I see no reason to doubt that the rejection of a demand that all DC-9 aircraft should be manned by an operational crew of three would give rise to an industrial dispute. My doubt is whether there ever was such a demand and rejection particularly in view of the fact that the parties were unanimous that, since what was called a "safety issue" was involved, the determination of the matter was exclusively within the authority of the Director-General of Civil Aviation and entirely beyond the competence of the Tribunal. This tends to suggest that in essence the dispute, which was not in any way precisely defined, may have been simply as to whether it was safe to operate DC-9 aircraft with an operating crew of two or whether a crew of three was required, and, additionally, as to the rights of a pilot pursuant to reg. 225 of the Air Navigation Regulations, to refuse to operate DC-9 aircraft with an operational crew of two. (at p39)

4. It is perhaps necessary to observe once again that it is not the industrial action taken to enforce a demand that constitutes an industrial dispute; an industrial dispute is constituted by the rejection of a demand relating to an industrial matter or matters made by one side upon the other. If, however, the demand does not relate to an industrial matter there is no industrial dispute even though industrial action is taken to enforce the demand (Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association (1956) 94 CLR 614). It seems unnecessary to add that the simple question whether it was safe to operate DC-9 aircraft with an operating crew of two and the further question as to the rights of pilots under reg. 225 could not be said to constitute industrial matters. (at p39)

5. It is however unnecessary to pursue this matter further for even if there was an existing industrial dispute there was no basis for the making of the award in question here. Such a dispute might have been settled by an award made by the Tribunal but, having regard to s. 88zc (1) of the Act, it could not have made an award inconsistent with reg. 194 of the Air Navigation Regulations. I should perhaps add that reg. 225, to which reference has already been made, does not invest the pilot in command of an aircraft with a discretion to determine what operating crew shall be required; it proceeds on the basis that the minimum operating crew shall be determined by the Director-General and the number of crew required shall be specified in the aircraft's certificate of airworthiness. (at p39)

6. The Tribunal did not however settle or purport to settle any such industrial dispute. In view of the attitude adopted by each of the parties in relation to what they called "safety issues" the Tribunal refrained from taking this course and made the award which is now attacked. The award was made in the form proposed by a draft produced by the representative of one of the operators. Realizing that it was not open to the Tribunal to prescribe a "bans" clause, except as incidental to the making of an award in settlement of a dispute, it was proposed by this representative that there should be an interim award prescribing a number of conditions in relation to which the parties had already expressed their agreement in the Airline Pilots' Agreement, 1966. In fact, there was no existing dispute with respect to these matters and the clauses in the interim award do not depart from the corresponding clauses in the agreement. According to the representative to whom reference has already been made it was necessary that there should be "some semblance" of a dispute in order to justify the making of a "bans" clause. I find it difficult to understand how such a proposition could be responsibly advanced but it is beyond doubt that not only did no dispute exist concerning the matters dealt with by the award but there was not even the semblance of a dispute with respect to them. The only dispute which it could possibly be argued existed was as to the number of the operating crew to be carried by DC-9 aircraft and the award that was made related to matters quite unconnected with that dispute. (at p40)

7. I would be in favour of granting prohibition. (at p40)

OWEN J. The applicants seek a writ of prohibition directed to the Flight Crew Officers Industrial Tribunal (the Tribunal) and the Australian National Airlines Commission and Ansett Transport Industries (Operations) Pty. Ltd. (the Operators) prohibiting further proceedings upon an award made by the Tribunal on 1st March 1968. The Tribunal is constituted under the Conciliation and Arbitration Act, No. 101 of 1967 (Cth) which adds a set of sections (ss. 88H to 88ZE) to the Conciliation and Arbitration Act 1904-1966 (Cth). Section 88H contains a series of definitions.

"Employer" means

"a person (including an authority of the Commonwealth) carrying on a business in the course of which the person employs flight crew officers, not being a business the principal place of control of which is outside Australia".

"Flight crew officer" means

"a person who performs (whether with or without other duties) duties as a pilot, navigator or flight engineer of aircraft, and includes a person being trained for the performance of such duties".

"Industrial matters" means

"all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, flight crew officers employed or to be employed by employers".

"Industrial question" means

"a dispute or question as to industrial matters, including an inter-State industrial dispute".

By s. 88U (1) (b) and (c) the Tribunal is empowered

"(b) to consider and determine industrial questions in so far as the industrial matters concerned relate to one or more of the following: - (i) employment of flight crew officers by the Australian National Airlines Commission; (ii) . . . (iii) trade and commerce with other countries or among the States, trade and commerce between a State and a Territory of the Commonwealth or trade and commerce in a Territory of the Commonwealth; and

(c) to prevent or settle, by conciliation or arbitration, inter-State industrial disputes".

And s. 88U (2) provides that

"For the purposes of the last preceding sub-section but without limiting the operation of that sub-section, an industrial matter shall be deemed to relate to trade and commerce referred to in paragraph (b) of that sub-section in so far as the matter relates to employment of persons in or for, or for training in or for, the performance of duties as flight crew officers in relation to aircraft engaged in, or the performance of duties that include duties as flight crew officers in relation to aircraft engaged in, any such trade and commerce".

Section 88V makes a number of provisions of the principal Act, including s. 28 (2), apply to industrial questions with which the Tribunal is empowered to deal. (at p41)

2. The Federation is an unincorporated association of pilots employed by various airlines including the airlines operated by the Operators. It is not an organization registered under the Principal Act but, by s. 88Z (1) it is provided that

"Where, in the opinion of the Minister, an association or other body, whether corporate or not, not being an organization, exists or is carried on for the purpose, or for purposes that include the purpose, of furthering the interests, in relation to industrial matters, of flight crew officers who are members of the body, the Minister may, by notice published in the Gazette, declare the body to be a body to which this section applies".

In such case a number of sections, to which reference need not be made for present purposes, are to have effect as if the declared body were an organization registered under the principal Act. The Federation is a body which has been declared under this sub-section. (at p42)

3. Section 88ZC (1) is in these terms:

"Subject to this section, the Tribunal or the person constituting the Tribunal shall not make an award, or certify a memorandum of an agreement, that is inconsistent with a law of the Commonwealth, or any instrument made or issued under such a law, and nothing contained in, or done under, this Part restricts the power conferred by a law of the Commonwealth to make or issue any instrument or the operation of an instrument made or issued under such a power." (at p42)

4. What seem to me to be the relevant facts stated in summary form are as follows:

DC-9 aircraft are and have been for some time used by the operators in their inter-State trade. In 1966 an agreement, to expire in 1969, was entered into between the operators and the Federation which dealt in detail with the terms and conditions of the employment by the operators of airline pilots. Both before and after the making of the agreement, there has been a dispute between the operators and the Federation as to whether DC-9 aircraft should carry a crew of two pilots, as the operators have always contended, or a crew of three pilots or two pilots and a flight engineer, as the Federation has contended, and when the agreement was entered into questions relating to this issue, which has been described as a "safety issue", were reserved for future discussion. Up to the present time this issue has not been resolved. By reg. 194 of the Air Navigation Regulations made under the Air Navigation Act, it is provided that the minimum operating crew of an aircraft shall not be less in number than that specified in the certificate of airworthiness of the aircraft issued by the Director-General of Civil Aviation and shall be supplemented by such additional operating crew members as the Director-General considers necessary and so directs. In July 1966 the Director-General informed the operators and the Federation that he had "concluded that there is no justification on safety grounds for requiring the DC-9 aircraft to be operated by other than a two-pilot crew for which it has been carefully and specifically designed" and I assume that the relevant certificates of airworthiness so provided. The Federation, however, continued to maintain its attitude that an operating crew of three should be employed. In September 1966 the Director-General informed the parties that "the inclusion of a third operating crew member would result in an unacceptably lower standard of safety" and that he had therefore decided that the operating crew should be limited to two pilots. In January 1968, however, after further consideration had been given to the question, he notified the parties that he had come to the conclusion that the presence of a third crew member to whom was assigned certain limited duties would not prejudice the safety of the operations of the DC-9 aircraft and that he was therefore prepared to vary the restriction which he had imposed in September 1966 "so as to permit a third crew member to be carried if the operators see any need to do so", provided however that the duties of any third crew member should be limited to those prescribed and that such member should be specifically authorized by him to be so employed. Following this communication from the Director-General, a conference was held on 31st January 1968 between the operators and representatives of the Federation at which the latter stated that the Federation's stand on the matter in dispute had not been altered and that it "would, on the ground of safety in operation require" DC-9 aircraft "as from 1st March 1968 to be operated by a crew of three pilots . . . and within ninety days of that date to be operated by two pilots and a flight engineer". (at p43)

5. On 21st February 1968 the Federation issued a circular to its members which contained the statement that

"You are hereby advised that on the simple grounds of the safety issues involved you are to operate the DC9-30 from 0001 hours on 1st March, 1968, with three indorsed crew members and are to refuse to operate the aircraft with any less crew complement".

On the following day the operators gave to the Tribunal a notification under s. 28 (2) of the principal Act "of the existence of an industrial situation which is likely to give rise to an industrial dispute" between the operators and the Federation. (at p43)

6. The notification set out at some length the events that had occurred in connexion with the dispute regarding the crewing of DC-9 aircraft and stated that the operators were apprehensive that a ban or limitation on work might be implemented by the Federation. They went on to ask that the Tribunal

"make such order or award as is within its jurisdiction to ensure that the applicants can take the necessary steps to ensure continuity of work and to protect obligations to keep faith with the travelling public and carry out commercial and other activities". (at p43)

7. I pause there to say that I think it clear that the only dispute that had arisen up to this time between the operators and the Federation was whether DC-9 aircraft should carry an operating crew of two or of three members and to point out that the fact that the Federation had directed its members not to operate such aircraft without a crew of three was a step proposed to be taken by the Federation to enforce its demand for an operating crew of three. The Federation's action in giving its members this direction was not in itself a dispute about an industrial matter: see Reg. v. Foster; Ex parte Commonwealth Steamship Owners' Association (1956) 94 CLR 614, where this Court, when dealing with a submission that the refusal of seamen to man a ship unless a demand by the Seamen's Union was complied with was an "industrial dispute", said:

"There are many difficulties about the foregoing argument, but it is enough to point out that it treats the measures taken to enforce the express or implied demand that Australian shipowners shall not use crews from abroad to bring new ships into the coastal trade or send old ships out of it as if the measures in themselves formed the dispute or disagreement or provided its subject matter. In other words it confuses with the demand itself the industrial action taken to enforce the demand. The measures taken may include bans and refusals to offer for employment, but these do not constitute a disagreement or dispute; they are but the consequences of the real dispute . . . " (1956) 94 CLR, at p 619 (at p44)

8. Following upon the notification under s. 28 the operators and the Federation came before the Tribunal on 26th and 29th February and 1st March. In the course of the proceedings the representatives of the operators gave an account of the history of the dispute concerning the crew manning of DC-9 aircraft culminating with the instruction given by the Federation to its members by its circular of 21st February 1968 and the "safety issue" was debated at length. I have read and re-read the transcript of the proceedings before the Tribunal and from it the following facts seem to me to emerge:

(1) There was a genuine dispute between the parties on the question of the manning of the DC-9 aircraft operated by the operators. (2) This was in reality the only matter in issue between the parties. (3) What the operators wanted from the Tribunal was an order prohibiting the Federation from being a party to or in any way concerned with any ban, limitation or restriction upon the manning of DC-9 aircraft with a crew of two pilots.

Both parties contended, however, that the Tribunal had no jurisdiction to make an award or settlement of the manning question since that, they said, was a "safety matter" with which the Tribunal could not deal. The Tribunal was disinclined to accept that view. It was disposed to think that it was competent to deal with that question and, if it thought fit, make an award in settlement of the dispute, provided of course that any award so made was not inconsistent with any law of the Commonwealth or any instrument made or issued under such a law (s. 88ZC (1)). On that I refrain from expressing any opinion. It does not seem to me to arise in these proceedings for the reason that, having regard to the submissions made by both parties that it would be beyond its powers to do this, the Tribunal refrained from dealing with that question. The difficulty that faced the operators, however, arose from the fact that what has come to be called a "bans clause" cannot be made in the absence of an award made in settlement of an industrial dispute since the purpose of such a clause is to aid in the enforcement of an award. The operators sought to overcome this difficulty by asking the Tribunal to take some of the clauses of the agreement of 1966 made between them and the Federation and, to use the words of the Tribunal, "convert" them into an award. This the Tribunal ultimately did, adding to them a "bans clause". The clauses of the agreement thus incorporated in the award were those headed "Contract of Employment", "Hours of Duty", "Base Pay - all Pilots", "Gross Hourly Pay - Captains", "Hourly Pay - First Officers", "Command Pay - First Officers", "Overseas Pay", "Additions to Salary", "Minimum Guarantee" and "Special Duties Allowances". In putting these clauses into the award some minor alterations were made but, as the operators made clear to the Tribunal and the Tribunal itself said, it was not intended that the terms of employment laid down in the award should conflict in any way with the terms of the agreement of 1966. But there was no dispute about the matters dealt with under these heads in the agreement and, as I have said, the subject of the manning of DC-9 aircraft was expressly excluded. There had been no breach or threatened breach of those clauses by any of the parties to the agreement and no dispute about its terms and there was therefore no basis for the award. The only dispute was one upon which the award did not touch for the simple reason that both parties insisted that the Tribunal could not deal with it. Accordingly I am of opinion that the award was not made for the purposes of settling an industrial dispute and that an order absolute for prohibition should be made. (at p45)

9. There remains, however, one matter on which I think I should express my opinion because the Federation's action, in issuing the notification to its members to which I have earlier referred, seems to have been based upon a misunderstanding of the Air Navigation Regulations. Attention was drawn by counsel for the applicants to reg. 225 (1) (e) and (g) which are in these terms:

"(1) An aircraft shall not commence a flight unless evidence has been furnished to the pilot in command and he has taken such action as is necessary to ensure that - (e) the required operating and other crew members are on board and in a fit state to perform their duties; (g) the aircraft is safe for flight in all respects."

And it was submitted that under reg. 225 the pilot in command of a DC-9 aircraft could and should refuse to fly it if, in his opinion, it would be unsafe to do so with an operating crew of less than three members. The submission was based upon the word "required" in par. (e) and it was suggested that this meant "required by the pilot in command". I do not agree. "Required", in my opinion, means "required under reg. 194", a regulation to which I have earlier referred. The point which I wish to emphasize is, however, that if, contrary to my opinion, such a discretion is vested in a pilot in command it is one upon which he would be required to exercise his own judgment and in such circumstances it would be, in my opinion, most improper that any other person or body should take it upon itself to direct him how he should exercise that discretion. (at p46)

Orders

Rule absolute for writ of prohibition to restrain respondents from proceeding further upon the award of the Flight Crew Officers Industrial Tribunal made on the first of March 1968 and known as the Air Pilots Interim Award 1968. Order that respondents Australian National Airlines Commission and Ansett Transport Industries (Operations) Pty. Limited pay the prosecutors' costs of the application.