Captain Anthony Lucas v Qantas Airways Limited
[2023] FWCFB 77
•18 APRIL 2023
| [2023] FWCFB 77 |
| FAIR WORK COMMISSION |
| REASONS FOR DECISION |
Fair Work Act 2009
s.604—Appeal of decision
Captain Anthony Lucas
v
Qantas Airways Limited
(C2023/1931)
| JUSTICE HATCHER, PRESIDENT | SYDNEY, 18 APRIL 2023 |
Appeal against decision of Commissioner P Ryan at Sydney on 31 March 2023 in matter number C2023/1371 – permission to appeal refused.
Introduction
Captain Anthony Lucas has lodged an appeal, for which permission is required, against certain directions made by Commissioner Ryan in matter C2023/1371 on 31 March 2023 (directions). We heard the parties in relation to the question of whether permission to appeal should be granted on 17 April 2023. At the conclusion of the hearing, we issued our decision in relation to the matter. We refused permission to appeal and stated that we would provide our reasons in due course. Our reasons for the refusal of permission are set out below.
Background
Matter C2023/1371 concerns an application made by Captain Lucas under s 739 of the Fair Work Act 2009 (Cth) (FW Act) on 15 March 2023 for the Commission to deal with a dispute with Qantas Airways Limited (Qantas) regarding clause 19.1.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020[1] (Agreement). Clause 19.1.2 provides:
Upon completion of training, a SOT will be allocated by the Company to the B787, A330 or A330/A350 SFF aircraft rather than the B747 and A380 aircraft unless there are insufficient bids from suitably qualified pilots employed prior to the commencement of clause 32.7, or otherwise agreed with the [Australian and International Pilots] Association for operational reasons. The Association will not unreasonably withhold agreement.
According to Captain Lucas’ application, the dispute is about whether the allocation of pilots to aircraft types (in particular, Second Officers to the A380) should be in accordance with seniority, or whether clause 19.1.2 requires Qantas to obtain the consent of the Australian and International Pilots’ Association (AIPA) in order for a direct allocation to be valid.
The dispute resolution procedure in the Agreement is set out in clause 47. Clause 47.1 provides that the procedure applies in relation to any disputes arising about matters arising under the Agreement or in relation to the National Employment Standards. It is not in contest that the dispute identified by Captain Lucas in his application concerning clause 19.1.2 is one arising under the Agreement. Clause 47.2.5 provides that once a dispute is referred to the Commission for resolution, the Commission ‘can take any or all of the following actions as it considers appropriate to resolve the dispute’. One of the identified actions (in clause 47.2.5) is that, subject to clause 46.1 (which specifies a number of matters which may not be the subject of arbitration), the Commission can, ‘where the matter(s) in dispute cannot be resolved (including by conciliation) and one (1) party or both request, arbitrate or otherwise determine the matter(s) in dispute.’ Clause 47.2.6 provides that the Commission ‘must follow due process and allow each party a fair and adequate opportunity to present his or her case’.
On 31 March 2023, the Commissioner listed the dispute for arbitration on 16-18 May 2023 and made directions to facilitate the conduct of that arbitration. Directions 2-6 are uncontroversial and concern the filing of evidence and submissions and applications for permission for legal representation. Captain Lucas’ appeal concerns the ‘questions for arbitration’ to be determined at the hearing as set out in Direction 1 made by the Commissioner. Those questions are:
1.In relation to Qantas’ proposed direct allocation of 20 SOTs [Second Officers in Training] to the A380 in the training year ending on 30 June 2023, has the Association unreasonably withheld its agreement under clause 19.1.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 at any time during the period between on or around 14 September 2022 and on or around 28 February 2023?
2.If the answer to question 1 is yes, and Qantas directly allocates SOTs to the A380, do the by-pass provisions in clause 16 apply?
The ‘by-pass provisions’ referred to in the second question above are contained in clause 16.5 of the Agreement.
Appeal grounds and submissions
The grounds of appeal in Captain Lucas’ notice of appeal are set out in 18 numbered paragraphs. It is difficult to identify with precision the contentions of appealable error contained in the grounds, but they appear to involve at least the following three propositions:
(1)The Commissioner erred by determining the questions to be arbitrated rather than simply adopting Captain Lucas’ proposed questions, contrary to clause 47 of the Agreement and s 739 of the FW Act.
(2)Captain Lucas’ questions were disregarded by the Commission and the settled questions by the Commissioner do not resolve the matter to finality, nor do the questions reflect Captain Lucas’ dispute and all the issues to be resolved in the controversy.
(3)Because Captain Lucas had earlier made an application for the Commissioner to recuse himself on the grounds of actual and apprehended bias, the Commissioner ought not to have determined the questions for arbitration prior to determining the recusal application.
Captain Lucas contends that permission to appeal should be granted for the following reasons:
(1)The decision or order under appeal is attended by sufficient doubt as to warrant its reconsideration.
(2)The decision or order applies an incorrect approach to the construction of the Agreement and/or the application of AMWU v Berri Pty Limited[2017] FWCFB 3005 (Berri).
(3)The decision or order under appeal raises important issues concerning the points raised by the applicant: (1) who decides the questions relating to an arbitration (2) who decides procedural issues relating to an arbitration (3) whether a fair hearing can result on the settled questions subject to the arbitration, and (4) whether the questions settled by the Commission are beyond jurisdiction.
(4)The decision or order under appeal manifests an injustice as the decision affects the present and future rights of many pilots (two hundred (200) second officers over the next five (5) years) in the aviation sector;
(5)The decision or order under appeal raises general issues in relation to the legal principles applied which appear disharmonious when compared with other decisions dealing with similar matters; and
(6)Substantial injustice will flow to the Appellant if permission is refused, in that its twenty (20) affected members will wrongly be required to participate in an arbitration that neither answers the dispute or the application as filed by the applicant before the Commission.
During the hearing of the appeal, we asked Captain Lucas’ representative to clarify why the questions determined by the Commissioner would not permit the dispute to be properly resolved by arbitration. Much of the response given to this question was less than pellucid. However, one point which emerged relatively clearly was that Captain Lucas wished to advance a case at the hearing that, on the proper construction of clause 19.1.2, if there were sufficient bids from suitably qualified pilots to fly the A380, the direct allocation of SOTs to the A380 was simply not permitted under the clause (regardless of whether the AIPA agreed otherwise or whether such agreement was unreasonably withheld). Captain Lucas’ representative sought to advance this contention in the context whereby it was not factually in contest that there were sufficient bids from suitably qualified pilots employed prior to the commencement of clause 32.7 to fly the A380 in the periods identified in question 1. Captain Lucas contended that the questions determined by the Commissioner did not accommodate this aspect of his case and that, in this respect, the Commissioner should have acceded to one of the further questions he proposed, namely: ‘If there are currently sufficient bids to the A380 from suitably qualified pilots currently employed by Qantas, then is it that SOTs cannot be allocated by Qantas to the A380?’
In response to this, Qantas conceded that the two questions determined by the Commissioner did not permit the consideration of this aspect of Captain Lucas’ case. It undertook to write to the Commissioner indicating its agreement to a variation of the directions to include the proposed additional question.
Consideration
We are not satisfied that it is in the public interest to grant permission to appeal such as to require permission to be granted under s 604(2), nor do we consider that permission should be granted on discretionary grounds, for the following reasons:
(1)The proposition that, in an arbitration conducted in accordance with the dispute resolution procedure in an enterprise agreement and pursuant to s 739 of the FW Act, the Commissioner may not as a preliminary step identify the issues in dispute requiring arbitration (by way of the formulation of questions or otherwise) is untenable. The correct characterisation of the dispute and the precise issues requiring resolution is usually an essential preliminary step in the arbitration process.[2]
(2)Qantas’ undertaking satisfactorily addresses the issue raised by Captain Lucas concerning the primary case he wishes to advance concerning the construction of clause 19.1.2. We anticipate that, upon being advised of Qantas’ agreement to do so, the Commissioner will vary the directions to add as the initial question ‘If there are currently sufficient bids to the A380 from suitably qualified pilots currently employed by Qantas, then is it that SOTs cannot be allocated by Qantas to the A380?’. No utility would therefore be served in granting permission to appeal for the purpose of the further agitation of this issue.
(3)The first question determined by the Commissioner is formulated in sufficiently broad terms as to allow Captain Lucas to advance any argument he sees fit as to why any refusal of agreement by the AIPA under clause 19.1.2 within the specified period was not unreasonable. This would include a contention that the refusal of agreement was not unreasonable having regard to other relevant provisions of the Agreement.
(4)The issue concerning the recusal application is moot. The Commissioner heard the recusal application on 4 April 2023 and, in a decision issued on 13 April 2023,[3] rejected it. It therefore does not matter now whether the Commissioner should have determined the recusal application before or after making the directions. We note that on 14 April 2023, Captain Lucas lodged a separate appeal against the recusal decision. His contentions of actual or apprehended bias on the part of the Commissioner may be dealt with in this separate appeal (subject to the grant of permission).
(5)The appeal does not otherwise raise any issue of general importance, wider application or novelty requiring Full Bench consideration.
PRESIDENT
Appearances:
E Dalgleish for Captain Anthony Lucas.
M Follett, counsel, for Qantas Airways Limited.
Hearing details:
2023.
Sydney and Melbourne by video using Microsoft Teams:
17 April.
[1] AE507855.
[2] See e.g. Farstad Shipping (Indian Pacific) Pty Ltd v MUA[2017] FWCFB 3317, [25]; Howard v National Patient Transport Pty Ltd [2021] FWCFB 5334, [18]; Mitchell v University of Tasmania[2022] FWCFB 165, [26]-[28].
[3] [2023] FWC 878.
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