Captain Anthony Lucas v Qantas Airways Limited

[2023] FWC 888

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.615—President may direct a Full Bench to perform a function

Captain Anthony Lucas
v

Qantas Airways Limited

(C2023/1371)

JUSTICE HATCHER, PRESIDENT

SYDNEY, 14 APRIL 2023

Request for referral of application under Fair Work Act 2009 (Cth) s 739 to a Full Bench – Fair Work Act 2009 (Cth) ss 582, 615 – request refused.

On 15 March 2023, Captain Anthony Lucas applied under s 739 of the Fair Work Act 2009 (Cth) (FW Act) 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). That clause reads:

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.

The Australian and International Pilots Association (AIPA) is covered by the Agreement. The dispute is said to be about whether the allocation of pilots to aircraft types should be in accordance with seniority, or whether clause 19.1.2 requires Qantas to obtain the AIPA’s consent in order for a direct allocation to be valid.

On 17 March 2023, Captain Lucas requested by correspondence that his dispute application be referred to a Full Bench of the Commission pursuant to s 615 of the FW Act. The dispute application is currently allocated to Commissioner Ryan, who has issued directions and listed the matter for hearing from 16 to 18 May 2023. Captain Lucas has applied for permission to appeal the Commissioner’s directions. That matter is listed for hearing on 17 April 2023.

Section 615 of the FW Act provides that I may direct a Full Bench to perform a function or exercise a power:

615The President may direct a Full Bench to perform function etc.

(1)A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.

(2)The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.

(3)To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.

It is well-settled that s 615 of the FW Act confers a broad discretion upon the President to direct that a function or power be exercised by a Full Bench. I note that it is not suggested by Captain Lucas that the public interest would require me to refer the matter under s 615A.

In support of his request for referral to a Full Bench, Captain Lucas contends in his correspondence that:

·An appeal of any single-member decision is inevitable because there are potentially conflicting authorities on whether post-agreement conduct may be used to aid interpretation, in this case of clause 19.1.2.

·The urgency of the construction exercise in dispute and its ability to affect the covered pilots’ future rights and seniority mean that referring the dispute application to a Full Bench would be in the interests of justice.

·Referring the dispute application to a Full Bench would also mean that the parties would only need to bear the costs of a single arbitration by the Commission.

Qantas opposes referral to a Full Bench.

I am not satisfied that I should exercise my discretion in favour of referring Captain Lucas’ dispute application to a Full Bench. The clause of the Agreement that is the subject of the dispute is clearly specific to the circumstances of Qantas’ business and, thus, the dispute has no broader industrial ramifications requiring Full Bench consideration. Captain Lucas has not explained why, nor am I persuaded that, the alleged issue of ‘potentially conflicting authorities on whether post-agreement conduct may be used to aid interpretation’ will necessarily arise in the determination of the matter. Both parties agree that the resolution of the dispute is time-sensitive, in which case the preferable course is for the matter to remain with the Commissioner, who has already made directions and listed the matter for hearing, rather than starting again before a Full Bench. Whether or not an appeal is ‘inevitable’, as Captain Lucas suggests, the time sensitivity of the matter makes it preferable that any necessary fact-finding be undertaken by the Commissioner rather than a Full Bench. Any appeal subsequent to the Commissioner’s decision may be the subject of an expedited hearing if necessary.

PRESIDENT

[1] AE507855.

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, Captain Anthony Lucas brought a claim against Qantas Airways Limited concerning the interpretation of clause 19.1.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020. This clause pertains to the allocation of pilots to specific aircraft types following completion of training. The crux of the dispute revolves around whether seniority or the necessity for the Australian and International Pilots Association's consent determines the validity of such allocations. The matter was before Commissioner Ryan, who had already issued directions and scheduled a hearing from 16 to 18 May 2023. Captain Lucas sought to have the application referred to a Full Bench of the Commission under section 615 of the Fair Work Act 2009, arguing that the urgency of the matter and potential conflicting authorities warranted such a referral.

The legal issues at the heart of this case were whether the President's discretion under section 615 of the Fair Work Act should be exercised to refer the matter to a Full Bench and whether the alleged potential for conflicting authorities on the interpretation of the enterprise agreement warranted such a referral. Captain Lucas contended that an appeal of any single-member decision was inevitable due to potentially conflicting authorities on the use of post-agreement conduct to aid interpretation. Additionally, he argued that the urgency of the matter and its potential impact on the pilots' future rights and seniority meant that referring the dispute to a Full Bench was in the interests of justice. Qantas, on the other hand, opposed the referral, asserting that the matter was sufficiently specific to Qantas' business and did not have broader industrial ramifications. They further argued that the matter should proceed before the Commissioner, who had already made directions and listed the matter for hearing.

The President, Justice Hatcher, declined Captain Lucas's request for a referral to a Full Bench. Justice Hatcher noted that the clause in question was specific to Qantas' business and did not have broader industrial implications requiring Full Bench consideration. The President was not persuaded that the alleged issue of potentially conflicting authorities would necessarily arise in the determination of the matter. Both parties agreed that the resolution of the dispute was time-sensitive, making it preferable for the matter to proceed before the Commissioner. The President concluded that any necessary fact-finding should be undertaken by the Commissioner rather than a Full Bench, with any subsequent appeal potentially being the subject of an expedited hearing if necessary.

No further orders were made by the President in this decision.

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Legal Principle Established