Australian Municipal, Administrative, Clerical and Services Union v Qantas Airways Ltd

[2020] FWC 1789

[2020] FWC 1789

FAIR WORK COMMISSION

STATEMENT

Fair Work Act 2009
s 526—Stand down

Australian Municipal, Administrative, Clerical and Services Union
v
Qantas Airways Ltd
(C2020/1917)

DEPUTY PRESIDENT SAMS SYDNEY, 3 APRIL 2020

Application to deal with a dispute involving stand downs – aviation industry – response to COVID-19 pandemic – access to personal leave when stood down – conciliation – Federal Court proceedings on same issue – statement and recommendation – further proceedings to be programmed if necessary.

[1] Yesterday, I convened an urgent listing of an application filed by the Australian Municipal, Administrative, Clerical and Services Union (the ‘ASU’), pursuant to s 526 of the Fair Work Act 2009 (the ‘Act’), in respect to thousands of its members employed by Qantas Airways Limited (‘Qantas’ or the ‘Company’) who are covered by the Australian Services Union (Qantas Airways Limited) Agreement 11 (the ‘Agreement’) and who have been stood down, or given notice of being stood down, as a consequence of the current COVID-19 pandemic wreaking havoc and devastation across the world’s peoples and economies. Little more needs to be said about the dire backdrop to this matter, suffice to note that its impact on Qantas has been brutal and devastating for the Company and thousands of its employees, with stand downs of approximately 20,000 having occurred, or are imminent.

[2] The gravamen of this specific dispute arises from Qantas’ view that access to personal leave under Cl 48 of the Agreement is not available to employees who are the subject of stand down because Qantas does not require work to be performed (or more correctly, it has no work to be performed). As a result, Qantas will not grant employees access to accrued personal leave and will ‘suspend’ personal leave already approved or being currently undertaken when an employee is stood down. This arrangement is said to be consistently applied across the entire Qantas workforce. I hasten to add that in the current circumstances, and in consultation with the relevant Unions, Qantas has agreed to allow employees access to:

•  accrued annual leave and long service leave;

•  paid and unpaid parental leave;

•  leave without pay;

•  leave at half pay; and

•  in some cases, leave is able to be taken in advance.

Further, in respect to the coverage of employees under the Agreement, including corporate staff, where work is required to be performed in some areas, this will be rotated between relevant employees.

[3] In short, the ASU maintains that if the prerequisites for the taking of personal leave are met under the Agreement and the Act, then employees should be permitted to access their accrued personal leave under Cl 48 of the Agreement if they are stood down.

[4] At the conference yesterday, Mr M Robson and Ms L White appeared for the ASU. Mr F Parry of Queen’s Counsel appeared with Ms K Srdanovic, Partner – Ashurst, Mr S Brown and Ms S Millen for Qantas. I granted permission for Qantas to be legally represented after consideration of the provisions of s 596 of the Act.

[5] At the outset, I make four points:

1. The ASU filed this application and has only sought a conciliation conference with the Commission at this stage.

2. In light of (1) above, this is not the occasion for me to comment on, let alone express any view about, the legal issues which arise under s 526 and the National Employment Standards (‘NES’) of the Act and/or the terms of the Agreement, notably Cl 15 – the Dispute Settlement Procedure (‘DSP’) and Cl 48 in respect to personal leave.

3. Given the urgency of the matter, I shall not rehearse in this statement the opposing arguments of the parties as to the merits of the application.

4. After conferring privately with the parties, and exploring some limited options for partial settlement of the dispute, I am satisfied that the parties’ respective positions are not able to be reconciled, in full or in part, at this time.

That said, I consider there is an important and relevant matter which prompted me to issue this statement.

[6] There is presently before the Federal Court of Australia (the ‘Federal Court’), urgent applications (NSD376/2020) filed by a number of Unions, namely, the ‘Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union’, known as the Australian Manufacturing Workers’ Union (‘AMWU’), the Australian Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (and likely the Transport Workers’ Union (‘TWU’)) which I understand seek declarations from the Federal Court as to agreement breaches, in respect to the very same issue, the subject of this dispute; namely, Qantas’ decision not to allow employees to access their accrued personal leave if stood down. Further, I was advised that the Federal Court (Flick J) issued directions for an expedited hearing in May 2020. I also understand that other Unions (including the ASU) may seek to be joined to these proceedings. I have also listed a discrete dispute, filed by the TWU on behalf of an individual member, in respect to this issue. There may well be other individual or collective disputes which arise about the same issue.

[7] It is trite to observe that this Commission is superintended by the superior Courts, including the Federal Court. Further, it is a well-accepted principle that, as far as practicable, concurrent litigation about the same issue/s in, and between Courts and Tribunals, should be eschewed so as to avoid unnecessary duplication of finite and stretched court resources and to avoid the possibility of different outcomes on the same issue/s in different jurisdictions. Obviously, this also applies to the duplication of costs and scarce resources expended by the same parties, in different jurisdictions, about the same matter.

[8] In the present unprecedented circumstances, it has not been lost on me (or the wider community for that matter,), that the degree of cooperation, hard work and goodwill demonstrated by the collective union movement, employer organisations, individual employers and the Government, has been extraordinarily proactive, positive and productive; no less so in respect to Qantas and its employees’ Unions. In these circumstances, and given the number of Unions which are or might be in dispute with Qantas about this issue, it seems to me that the peak union body, the Australian Council of Trade Unions (‘ACTU’), should urgently coordinate the Unions’ position and organise and lead negotiations with Qantas about this discrete matter. This may result in resolving any number of existing, or likely disputes and avoid duplication of time, resources and costs for the parties, including – if I may be so bold – the pending Federal Court proceedings.

[9] Pursuant to s 526(2) of the Act, I recommend accordingly.

[10] As advised to the parties, if the ASU’s application is ultimately pressed, directions for the filing and service of submissions and draft orders sought, will be subject to a telephone directions hearing listed at short notice.

[11] These proceedings are otherwise stood with liberty to apply at short notice.

DEPUTY PRESIDENT

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