[2021] FWC 3604

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Jarrod Seen
v
Eastern Australia Airlines Pty Limited T/A QantasLink
(C2020/6987)

Trevor McGuire
v
Eastern Australia Airlines Pty Limited T/A QantasLink
(C2020/7033)

COMMISSIONER CAMBRIDGE

SYDNEY, 2 JULY 2021

Dispute settlement procedure - jurisdictional objections raised - dispute regarding seniority listing of pilots - historical alteration to seniority list involving swap of pilots between related companies - issue in dispute arose under predecessor instrument - time limit for seniority protest - unconscionable outcome - jurisdictional objections upheld - applications refused.

[1] This Decision is made in respect of two applications that were taken under s. 739 of the Fair Work Act 2009 (the Act) for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a Dispute Settlement Procedure (DSP). The applications were respectively made by Jarrod Michael Seen (Mr Seen) and Trevor John Murry McGuire (Mr McGuire) (jointly the applicants), and the respondent employer is Eastern Australia Airlines Pty Ltd T/A QantasLink (Eastern or the employer). The applicants are both pilots (Captains) employed by Eastern.

[2] The applications were made pursuant to a DSP which is found at clause 10 of the Eastern Australia Airlines Pty Limited Pilots Enterprise Agreement 2015 (the 2015 EA) and which provided the Commission with conciliation and arbitration powers in respect of a dispute arising in the workplace about matters arising under the 2015 EA, or the National Employment Standards.

[3] The applications were filed on 15 September 2020, and during conciliation proceedings held on 15 October 2020, the subject matter of the dispute in both applications was identified to involve the assertion made by the applicants that another pilot, Captain Yolanne Baker (Ms Baker) was placed in an incorrect position on the seniority list of Eastern pilots. Further, during the conciliation conference the employer reiterated jurisdictional objections to the applications that it had previously communicated to the applicants and which, in broad terms, concerned the time that had elapsed since Ms Baker had been placed in the position that she occupied on the seniority list of Eastern pilots. Subsequent attempts to involve Ms Baker in mediation of the issue concerning her position on the seniority list of Eastern pilots were unsuccessful.

[4] Further attempts to resolve the applications were unsuccessful, and the applicants indicated their intention to advance the applications against the jurisdictional objections that had been raised by the employer. Although the DSP contains a provision that provides for Parties to be represented, including by legal representatives, in proceedings taken under the DSP, the Commission was satisfied that the requirements of s. 596 of the Act had been met, and permission was granted for the Parties to be represented by lawyers or paid agents. The Commission issued Directions for the Parties to file and serve evidence and other materials in preparation for an arbitration Hearing to deal with the jurisdictional objections raised by the employer.

[5] The Hearing regarding the employer’s jurisdictional objections to the applications was held on 22 April and 12 May 2021, at which time Ms V Bulut, barrister, instructed by Ms O McIntosh from Ashurst Australia, appeared for the employer, and the applicants represented themselves. Ms Bulut introduced evidence from two witnesses, QantasLink’s Chief Pilot, Nicholas Collie and Ms Baker. The applicants each provided evidence as witnesses.

Relevant Background

[6] Eastern is a part of the Qantas group of companies which also includes Sunstate Airlines (QLD) Pty Limited (Sunstate). Eastern and Sunstate are two separate operators that trade under the name QantasLink. Eastern primarily operates aviation services in New South Wales and Victoria, while Sunstate provides aviation services primarily in Queensland.

[7] Eastern and Sunstate both maintain separate seniority lists for their respective pilots. The seniority lists are established in the order of when each pilot commenced employment, with the longest serving pilot occupying the highest position number on the seniority list (#1), while the most recently employed pilot is allocated the lowest position number on the seniority list (#xxx).

[8] In respect of both Eastern and Sunstate, an individual pilot’s seniority position provides important benefits regarding various employment related issues. A pilot’s seniority number is used to decide many employment related matters. Most decisions that provide employment benefits in relation to work allocation, promotions, retention or demotion, postings, temporary and permanent transfers, and allocation of annual leave, are determined by a pilot’s seniority number. Thus, a pilot with a lower seniority number will be offered various employment related benefits before any other pilot with a higher seniority number. This application of employment related benefits based upon a pilot’s seniority number has been historically enshrined in relevant industrial instruments and strictly observed over many decades for pilots employed at both Eastern and Sunstate.

[9] On 5 May 2006, Sunstate announced that it would establish a pilot base in Canberra and in September of that year (2006), 17 Sunstate pilots were permanently transferred from Sunstate’s Brisbane base to the new Canberra base. On 3 December 2008, Sunstate announced that it intended to close its Canberra pilot base as it had proven to be unviable. Consequently, in 2008, the 17 Sunstate pilots who had transferred to the new Canberra base in 2006, would be required to relocate back to Brisbane or possibly Cairns.

[10] However, in response to the announcement of the closure of the Sunstate Canberra pilot base (December 2008), discussions occurred between Pilot Council representatives from Eastern and Sunstate, together with the relevant industrial organisation representing many of the pilots, the Australian Federation of Air Pilots (AFAP), and Eastern and Sunstate management trading as QantasLink. These discussions resulted in an agreement to facilitate temporary position swaps for pilots impacted by the closure of the Canberra pilot base. The temporary position swaps relevantly invited expressions of interest from any Eastern pilots who would be prepared to transfer to either Brisbane or Cairns, thereby enabling any of the displaced Sunstate Canberra pilots to swap into the positions of any Eastern pilots who expressed an interest in transferring to either Brisbane or Cairns.

[11] In early 2009, two Sunstate pilots and two Eastern pilots participated in the temporary position swaps. Relevantly, Ms Baker was one of the Sunstate pilots who participated in the temporary position swaps whereby she transferred into a Sydney based Eastern pilot position occupied by Captain Rick Vella (Mr Vella), and Mr Vella transferred to Ms Baker’s Brisbane based Sunstate pilot position. One of the terms of the temporary position swap stipulated that a pilot filling a swap position would have the swap partners seniority for all purposes of allocation of leave, temporary transfer and the like but not for upgrades, training, or supervisory positions. The temporary position swaps were anticipated to be for a maximum period of 24 months with the prospect of extension for some further agreed period.

[12] On 27 April 2011, the AFAP sent a letter to QantasLink requesting that the temporary position swaps be made permanent. This letter specifically named the four pilots who had participated in the temporary position swap, including the swap between Ms Baker and Mr Vella. The letter further clarified that the affected pilots would permanently assume the relative seniority of their swap partner and be regarded as employees of the company in which they had currently swapped into for all purposes. The letter also requested that QantasLink publish pilot seniority lists reflecting the changes resulting from the position swaps and provide the relevant pilots with employment contracts that confirmed their swapped position.

[13] QantasLink agreed to make the temporary position swaps permanent, and on 28 April 2011, the AFAP issued a briefing note to all Sunstate and Eastern pilots which inter alia, advised that the swap arrangements for the four temporarily swapped pilots would become permanent and reflected on the respective pilots seniority lists. The AFAP briefing note mentioned the name of the four pilots including Ms Baker and Mr Vella. Ms Baker subsequently received a letter dated 2 June 2011, which confirmed the permanency of her swap position, and relevantly advised that she would forfeit her position on the Sunstate pilots seniority list, and assume the seniority number of Mr Vella (incorrectly identified as “Veller”).

[14] At the time of both the temporary position swaps in 2009 and the subsequent permanency that was established for those position swaps in 2011, which involved inter alia, Ms Baker swapping into the position occupied by Mr Vella on the Eastern pilots seniority list, the employment of pilots engaged by Eastern was covered by the Eastern Australia Airlines Pty Limited Enterprise Agreement 2007 (the 2007 EA). The 2007 EA ceased to operate and was replaced on 28 July 2011, when the Eastern Australia Airlines Pty Ltd Pilots Enterprise Agreement 2010 (the 2010 EA) commenced to operate. On 7 October 2015, the 2010 EA ceased to operate and was replaced by the 2015 EA.

[15] On 28 August 2019, Mr McGuire wrote to the AFAP and QantasLink raising a formal complaint about the permanent position swaps that had been put in place in 2011. Mr McGuire sought the removal of the seniority arrangements that had been put in place in 2011 such that specifically, Ms Baker would be removed from the seniority position that she occupied in lieu of Mr Vella. The AFAP responded to Mr McGuire in a letter dated 6 September 2019, which relevantly advised that the Eastern Pilot Council felt that it was inappropriate to alter the position swap arrangements that had been made in 2009 and 2011. Mr McGuire unsuccessfully sought to have the AFAP further agitate his complaint with QantasLink and instead it indicated that Mr McGuire could pursue the issue via the DSP contained in the 2015 EA.

[16] On 4 May 2020, Mr McGuire and Mr Seen jointly authored a letter to QantasLink which sought to activate the DSP contained in the 2015 EA. In this letter, the applicants raised dispute about the position swap arrangements that occurred in 2009 and 2011, and they asserted that these arrangements breached various terms of the 2007 EA. In a letter dated 26 May 2020, QantasLink responded to the applicants’ letter of 4 May and dismissed the assertions that the position swap arrangements that occurred in 2009 and 2011 breached the terms of the 2007 EA. Further, QantasLink outlined the basis upon which it believed that the Commission lacked jurisdiction to deal with the dispute that had been raised by the applicants.

[17] Following further unsuccessful attempts to have senior representatives of QantasLink review and reconsider its position in respect to the complaints raised by the applicants regarding the position swap arrangements that occurred in 2009 and 2011, on 15 September 2020, the applicants filed their applications with the Commission which commenced these proceedings. The employer has subsequently maintained and expanded its jurisdictional objections to the applications.

The Jurisdictional Objections Advanced by the Employer

[18] Ms Bulut appeared for the employer at the Hearing and she advanced the jurisdictional objections that had been presented in an outline of submissions document that was filed on 20 November 2020. Ms Bulut also provided the employer’s outline of submissions in reply document dated 19 April 2021. Ms Bulut supplemented the documentary submission material provided by the employer with oral submissions made during the Hearing on 12 May 2021.

[19] Ms Bulut configured her oral submissions by referring to four primary issues which she asserted established that the Commission lacked jurisdiction to deal with the applications.

[20] The first basis upon which it was asserted that the Commission lacked jurisdiction to deal with the applications related to what was said to involve the exercise of judicial rather than arbitral power in order to provide any answer to the three questions that had been posed in the applications. Ms Bulut examined the wording of the three questions that were contained in the Form F10 application documents under the heading “Questions for Determination”.

[21] Ms Bulut submitted that the first question required the Commission to determine whether Ms Baker’s current employment was covered by the 2015 EA, or the Sunstate Airlines (QLD) Pty Limited Pilots Enterprise Agreement 2015. Ms Bulut submitted that the Commission was being asked to determine who Ms Baker’s true employer is, and that the question of the legitimacy or otherwise of the contract of employment between Ms Baker and her employer was not a dispute that arose under the 2015 EA. Further, Ms Bulut submitted that a determination of this nature represented the assignment or otherwise of an accrued right, and thus the exercise of judicial rather than arbitral powers.

[22] Ms Bulut submitted that the second question sought for determination in the applications required the Commission to determine whether the employer had contravened the terms of the 2015 EA. Ms Bulut submitted that the answer to this question involved the ascertainment, declaration or enforcement of legal rights, and a finding that there had been a contravention in the past. Ms Bulut submitted that this was clearly a question which would be answered by way of the exercise of judicial rather than arbitral powers.

[23] The third question that the applicants sought determination of involved the assertion that the employer had taken adverse action against certain of its employees by altering a group of its employees’ position to their prejudice and inserting new employees above them on the Eastern pilots seniority list. Ms Bulut submitted that this question could not be answered in these proceedings but instead was a matter that would more appropriately be advanced by way of an application involving an alleged contravention of a general protection. Consequently, Ms Bulut submitted that the jurisdiction of the Commission could not be enlivened in these proceedings to answer a question regarding an alleged contravention of a general protection.

[24] Ms Bulut submitted that an examination of the three questions for determination that had been proposed in the applications, demonstrated that the Commission would be exercising judicial power if it provided any determination of those questions. Further, Ms Bulut submitted that in November 2020, the applicants were put on notice of the alleged deficiencies in the construction of the questions that they had posed for determination, and they had taken no steps to re-cast those questions so as to ensure that they fell within the Commission’s arbitral powers.

[25] The second basis upon which the jurisdiction of the Commission was challenged involved the contention that the dispute did not arise under the 2015 EA, but rather it was a matter that arose under the 2007 EA. Ms Bulut submitted that the Commission did not have the private powers of arbitration under the 2015 EA to deal with a dispute that arose under the 2007 EA. In support of this aspect of the employer’s jurisdictional objection, Ms Bulut confirmed reliance upon the authority established by the Decision of the Full Bench of the AIRC in Stephenson v Abetz [PR952743], (28 October 2004) (Stephenson) 1.

[26] In support of the second basis for challenge to the jurisdiction of the Commission, Ms Bulut referred to the evidence provided by the applicants which confirmed that they were aware of the position swap arrangements that occurred in 2009 and 2011, and that the actual controversy of the dispute was the swap arrangements that had occurred in 2009 and 2011. Ms Bulut submitted that the actual controversy was whether the arrangements that were made in 2009 and 2011 were permitted, and according to the submissions of Ms Bulut, that issue could only be answered by reference to the enterprise agreement that applied at that particular point in time, and that was clearly not the 2015 EA.

[27] Ms Bulut made further submissions which rejected the proposition that the subsequent re-issuing of seniority lists which continued the swap arrangements made in 2009 and 2011 provided proper basis for activation of the DSP in the 2015 EA. Ms Bulut submitted that the position swap arrangements occurred in 2009 and 2011, and any argument about those arrangements had to be activated under the enterprise agreement in operation at the time, the 2007 EA. Ms Bulut submitted that there was no evidence that the applicants were unaware of the position swap arrangements when they occurred in 2009 and 2011, and they didn’t do anything about it until more than 10 years later. Ms Bulut submitted that the applicants could not raise a dispute under the 2015 EA about an issue that occurred during the operation of the 2007 EA.

[28] Ms Bulut made submissions in support of the third argument that the employer raised in support of its jurisdictional objections. Ms Bulut submitted that if the matter could be raised under the DSP contained in the 2015 EA, the particular provisions of the 2015 EA which dealt with a dispute about pilots’ seniority could not be satisfied. Therefore, according to the submissions of Ms Bulut, the requirements of clause 23.1.5 of the 2015 EA established that a pilot was permitted a period of 14 days after any publication of the seniority list in which to protest to the employer about any admission or incorrect listing affecting his or her seniority. Ms Bulut submitted that the publication of any seniority list during the currency of the 2015 EA and upon which the applicants sought to advance their protest, did not involve any alteration to their respective positions on the seniority list.

[29] According to the submissions made by Ms Bulut, the change that the applicants relied upon in respect of the seniority list could not satisfy the requirements of clause 23.1.5 of the 2015 EA, and it followed that the DSP could not be properly activated so as to provide the Commission with jurisdiction. Ms Bulut also made submissions which rejected the applicants’ challenge to the validity of clause 23.1.5 of the 2015 EA. Ms Bulut submitted that the operation of clause 23.1.5 which limited the time in which a pilot could activate a protest about seniority, was a commonplace provision and not at all impermissible under s. 186 of the Act.

[30] The fourth aspect of the jurisdictional challenge advanced by the employer involved the assertion that even if the Commission did have jurisdiction to deal with the dispute raised by the applicants, it should exercise its discretion not to arbitrate the matter in dispute. Ms Bulut submitted that the time that had elapsed since the position swaps in 2009 and 2011 and the activation of the dispute, created potential for significant impacts if the seniority position of Ms Baker was altered after such a significant period of time.

[31] Ms Bulut made submissions which referred to the evidence provided by Ms Baker about the reliance that she had placed on her seniority position and the impact that her seniority position had in respect of various career and personal life decisions that she had taken over the past 10 years. Ms Bulut submitted that the tardiness of the applicants with raising the dispute meant that any alteration to the seniority position of Ms Baker could have a tremendous impact on her and therefore the Commission should exercise its discretion not to determine the applications but instead dismiss them because to hear the applications now would be an abuse of process.

[32] In conclusion, Ms Bulut submitted that the jurisdictional objections that had been raised by the employer should be upheld. Ms Bulut submitted that firstly, the Commission was being asked to exercise judicial powers which was impermissible. Secondly, the subject matter of the dispute did not arise under the DSP of the 2015 EA. Thirdly, if the dispute could be taken under the 2015 EA, it could not be properly activated in accordance with clause 23.1.5, and fourthly, Ms Bulut submitted that the Commission should exercise its discretion not to arbitrate the matter because of the potential impacts upon Ms Baker created by the time lapse since the position swaps had taken place.

The Applicants’ Case Against the Jurisdictional Objections

[33] The applicants filed a written outline of submissions document on 12 April 2021, which in summary, asserted that the Commission did have jurisdiction to determine the dispute, and the employer’s jurisdictional objections should be dismissed. At the Hearing on 12 May 2021, Mr Seen made oral submissions which elaborated upon the outline of submissions document.

[34] Mr Seen firstly explained that the COVID-19 pandemic provided the motivation that he had for raising the dispute regarding the position swap that occurred in the past, and which resulted in Ms Baker occupying a seniority position above him despite her having shorter service than himself and other pilots. Mr Seen said that he was concerned about the possibility of being made redundant because of the reduction in air travel caused by the COVID-19 pandemic. Mr Seen noted that redundancy selection would be based on seniority and therefore Ms Baker would remain employed while he may be made redundant although he had longer service than Ms Baker. Mr Seen also mentioned that none of the individuals or parties who had been involved in negotiating the position swap arrangements had come forward to make comment or otherwise participate in relation to the current dispute.

[35] Mr Seen made further submissions which rejected the employer’s assertion that the Commission lacked the jurisdiction to deal with the current dispute because the subject of the dispute was said to have arisen under the 2007 EA, and not the 2015 EA. Mr Seen submitted that Mr McGuire raised the dispute in August 2019, when he made complaint that the seniority list had not been published in accordance with the 2015 EA. Mr Seen stated clause 23.1.1 of the 2015 EA was quite simple, and it required the employer to publish a seniority list relevant to length of service. Mr Seen said that there was no dispute that he and Mr McGuire had served longer with the employer than Ms Baker. However, Ms Baker was in a position above them on the seniority list and this meant that the list had not been published in the correct order and contrary to the requirements of clause 23.1.1 of the 2015 EA. Mr Seen submitted that the Commission had jurisdiction to deal with the dispute which arose from the employer failing to publicise a seniority list in accordance with clause 23.1.1 of the 2015 EA.

[36] Mr Seen also made submissions which raised concern about the failure of relevant parties to engage in mediation. Mr Seen stressed that he and Mr McGuire played no part in refusing to engage in mediation, and despite several opportunities for mediation which were not taken, the matter was now required to proceed to arbitration.

[37] In further submissions, Mr Seen emphasised the challenge that he and Mr McGuire had made to the employment status of Ms Baker. Mr Seen submitted that there had not been any evidence provided of an employment contract between Ms Baker and Eastern. Mr Seen indicated that he and Mr McGuire would have proposed an outcome via mediation whereby Ms Baker’s seniority date and her position on the seniority list would have been established from the commencement of her maximum term contract. Further, Mr Seen submitted that whatever particular date might be properly established for the commencement of service of Ms Baker, she would retain the position of a Captain on a Q400 aircraft and retain the same salary. According to the submissions made by Mr Seen, an adjustment of this nature for the seniority position of Ms Baker, would not represent an unconscionable outcome. Mr Seen stated that circumstances may arise where Ms Baker may need to relocate base but that was not unusual, and pilots understood that from time to time they were required to move around.

[38] Mr Seen made further submissions which stressed that the dispute involved the employer failing to manage the seniority list in accordance with the 2015 EA, and the applicants were seeking a decision which would involve determining the future rights of pilots. Mr Seen submitted that the arbitral powers of the Commission would be exercised by resolving the contest about whether the seniority list had been published in accordance with clause 23.1.1 of the 2015 EA. Mr Seen rejected the submissions of the employer which contended that the resolution of the dispute would involve the exercise of judicial rather than arbitral powers.

[39] Mr Seen’s further submissions rejected the employer’s contention that clause 23.1.5 of the 2015 EA operated to prevent the current dispute because it limited any protest made by a pilot in respect to the publication of a seniority list to a period of 14 days after the publication of the seniority list. In this regard, Mr Seen submitted that clause 23.1.5 was not a term about a permitted matter and it was an objectionable term as it restricted access to a dispute resolution term of an enterprise agreement and therefore it had no effect. In this regard, Mr Seen referred to the applicants’ written outline of submissions which mentioned that clause 23.1.5 should be interpreted to exclude an employee from the provisions of access to a dispute settlement procedure and would therefore fail to meet the requirements of s. 186 (6) of the Act.

[40] In further submissions, Mr Seen reinforced the applicants’ submissions that Ms Baker’s employment relationship was covered by an employment contract with Sunstate and not Eastern. Mr Seen submitted that the employer had never provided Ms Baker with an ongoing employment contract and the absence of any evidence to support Ms Baker’s employment relationship provided further support for the contest that he and Mr McGuire were raising in respect to the seniority list that had been published by Eastern.

[41] The applicants’ written submissions also challenged the employer’s reliance upon the Stephenson Decision. The applicants submitted that the circumstances in the Stephenson case involved a dispute that was filed under an agreement that then expired and had been replaced. The applicants asserted that in this instance the dispute had been lodged during the period of operation of the 2015 EA, and unless the 2015 EA had been replaced or terminated prior to the Hearing, the authority established in the Decision in Stephenson did not apply.

[42] In conclusion, Mr Seen submitted that the dispute was a matter arising under the 2015 EA and it owed its existence to clause 23 of the 2015 EA. Further, all necessary steps of the dispute resolution procedure had been completed, and therefore the powers of the Commission had been properly enlivened. Mr Seen further submitted that the Commission would, in settling the dispute, be exercising the powers of arbitration. Further, Mr Seen said that Ms Baker was not covered by the 2015 EA. Mr Seen submitted that the Commission had jurisdiction to arbitrate the dispute that had been properly raised by the applicants. Mr Seen submitted that the jurisdictional objections that had been raised by the employer should be dismissed, and the Commission should proceed to determine the dispute accordingly.

Consideration

[43] This Decision is made in respect of a jurisdictional challenge to the applications that were taken under s. 739 of the Act. Section 739 is found in Part 6-2 of the Act which relevantly provides the statutory basis upon which the Commission (and others) may obtain powers including arbitration powers, to deal with disputes. Part 6-2 of the Act comprises four sections and is in the following terms:

“Division 2—Dealing with disputes

Subdivision A—Model term about dealing with disputes

737 Model term about dealing with disputes

The regulations must prescribe a model term for dealing with disputes for enterprise agreements.

Subdivision B—Dealing with disputes

738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

(b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

(d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards.

739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

(2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter.

Note: This does not prevent the FWC from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

Note: The FWC may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion (see subsection 595(2)).

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

(6) The FWC may deal with a dispute only on application by a party to the dispute.

740 Dispute dealt with by persons other than the FWC

(1) This section applies if a term referred to in section 738 requires or allows a person other than the FWC to deal with a dispute.

(2) The person must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless:

(a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the person dealing with the matter; or

(b) a determination under the Public Service Act 1999 authorises the person to deal with the matter.

Note: This does not prevent a person from dealing with a dispute relating to a term of an enterprise agreement that has the same (or substantially the same) effect as subsection 65(5) or 76(4) (see also subsection 55(5)).

(3) If, in accordance with the term, the parties have agreed that the person may arbitrate (however described) the dispute, the person may do so.

(4) Despite subsection (3), the person must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.”

[44] In this case, the applications relied upon subsection 738 (b) of the Act, and they referred to a dispute settlement procedure (DSP) in an enterprise agreement. Specifically, the relevant DSP was clause 10 of the 2015 EA which is in the following terms:

“10. PROCEDURES FOR THE AVOIDANCE OF INDUSTRIAL DISPUTES

10.1.1. In the event of a dispute arising in the workplace about matters arising under this Agreement or the National Employment Standards, the procedure to resolve the matter will be as follows:

a) The pilot and the appropriate Company representative meeting and conferring on the matter.

b) If the matter is not resolved at this meeting, the parties must arrange for further discussions between the pilot and more senior levels of management.

c) If the matter cannot be resolved it may be referred by either party to FWC for resolution. This does not affect the right of either party to a dispute to take other action to resolve the dispute.

10.1.2. While the parties attempt to resolve a dispute pilots must continue to work as normal in accordance with this Agreement and their contracts of employment unless a pilot has a reasonable concern about imminent risk to safety or health. In this case, a pilot must not unreasonably fail to comply with a direction of the Company to perform other available work, whether at the same or another workplace that was safe and appropriate for the pilot to perform.

10.1.3. If a dispute is referred to FWC for resolution, FWC can take any or all of the following actions as it considers appropriate to resolve the dispute:

a) convene conciliation conferences of the parties or their representatives at which FWC is present;

b) require the parties or their representatives to confer among themselves at conferences at which FWC is not present;

c) request, but not compel, a person to attend proceedings;

d) request, but not compel, a person to produce documents;

e) where either party requests, make recommendations about particular aspects of a matter about which they are unable to reach agreement;

f) where the matter, or matters, in dispute cannot be resolved (including by conciliation) and either party requests, arbitrate or otherwise determine the matter, or matters, in dispute.

10.1.4. FWC must follow due process and allow each party a fair and adequate opportunity to present their case.

10.1.5. Any determination by FWC under paragraph 10.1.3 f) must be in writing if either party so requests, and must give reasons for the determination.

10.1.6. Any determination made by FWC under paragraph 10.1.3 f) must be consistent with applicable law and must not require a party to act in contravention of an applicable industrial instrument or law. Where relevant, and circumstances warrant, FWC can consider previous decisions of FWC.

10.1.7. FWC must approach matters regarding management decisions in accordance with the general principles set out in the XPT case [(1984) 295 CAR 188].

10.1.8. FWC must not issue interim orders, ‘status quo’ orders or interim determinations.

10.1.9. The parties are entitled to be represented, including by legal representatives, in proceedings pursuant to this dispute resolution procedure.”

[45] The applications indicated that the dispute related to the position of the applicants on a seniority list and how their positions had been altered by a series of past decisions and acts conducted by the employer. The contested seniority list was published by the employer pursuant to clause 23 of the 2015 EA. The applications included only the first subclause 23.1.1 of clause 23, the entire clause 23 of the 2015 EA is in the following terms:

“23. SENIORITY

23.1.1. The Company shall publish no later than fourteen days after the commencement of this Agreement a seniority list of all pilots in its permanent employment. A number indicating relative length of service with the Company shall identify the seniority of each pilot on the list, the longest serving pilot having the number "one". A pilot once having established a seniority date shall not lose that date except by termination of employment as a pilot with the Company.

23.1.2. A pilot’s seniority shall be advised to him or her in writing on the day he/she commences employment as a pilot.

23.1.3. Pilots employed on the same date shall have their relative seniority positions decided by the Company in accordance with qualifications and experience.

23.1.4. Relative Seniority

a) Relative seniority of the Company's permanent pilots as indicated on the seniority list shall be the primary consideration of the Company in all matters concerning employment opportunities with the Company, including:

• equipment assignments;

• promotions;

• retention or demotion in case of reduction of establishment;

• postings, temporary and permanent transfer.

b) Should a situation arise in which observance of this clause 23.1.4 would not be expected to meet the needs of the Company and a solution cannot be agreed between the Company and a pilot, a conference shall be convened between the Federation and the Company or their representative to achieve a solution.

23.1.5. A pilot shall be permitted a period of fourteen days after any publication of the seniority list in which to protest to the Company on any omission or incorrect listing affecting his seniority, except that a pilot on leave or duty away from home base at the time of publication of such list shall have a period of fourteen days from date of his return to duty at his home base during which to file such protest. If dissatisfied with the Company's decision the pilot may have recourse to the grievance procedures in this agreement.

23.1.6. A pilot on permanent hire whose licence has been cancelled or suspended on medical grounds shall retain a right to re-employment for a period of five years from the date of such cancellation or suspension provided his/her commercial or higher licence pertinent to his employment is reissued within that period. This shall only apply where a vacancy exists. A pilot re-employed under this clause shall retain his relative position on the seniority list.

23.1.7. All equipment assignments, vacancies and temporary and permanent transfers shall be advertised via the company’s electronic distribution system to each pilot for a period of seven days. The Company shall notify all pilots who are on leave. All pilots shall be entitled to apply in writing for such positions and the Company shall fill such vacancies and allocate such transfers in accordance with clause 23.1.4, excepting that the Company may be entitled to appoint any captain to the positions of Manager Flying Operations and senior base pilot. The Company may appoint check and training captains from captains on the seniority list who must have the seniority to rate the type or category of aircraft.

23.1.8. The Company shall use a standard documentary format which displays the relevant information on each occasion a vacancy is advertised. The format shall include:

a) equipment assignment;

b) location(s) of vacancies;

c) number of vacancies at each location;

d) closure date of bid;

e) commencement date of technical training.

23.1.9. Each pilot awarded an assignment shall be notified immediately by the Company of the award. This shall be confirmed in writing immediately thereafter.

23.1.10. A pilot may submit a standing bid.

23.1.11. Should a pilot be promoted in grade or status over a more senior pilot, the more senior pilot shall retain his/her position on the seniority list and shall be advised forthwith in writing by the Company of the reasons for his/her by-pass. Should the more senior pilot dispute the Company's assessment of him/her and should he/she prima facie meet the criteria for appointment to the position concerned, he/she may elect to grieve the matter and the Company may be required to demonstrate why the pilot should not be paid the salary applicable to the position concerned.

23.1.12. To the extent that it is necessary to overcome immediate problems of crew shortages arising when additional equipment is introduced, the Company may temporarily utilise pilots out of order of seniority, Such utilisation may continue until sufficient pilots have been trained in order of seniority to fill all positions on the additional equipment and training of such pilots shall normally be completed within four months of introduction of the additional equipment.

23.1.13. Unless otherwise agreed by the affected pilots and, if requested by an affected pilot, the Federation, training required by pilots who are successful bidders will be carried out in order of seniority. Where no agreement is reached and pilots are trained out of seniority order the more senior pilot shall receive by-pass pay from the date the more junior pilot is cleared to line.

23.1.14. A pilot awarded two turbine equipment assignments which result in a change of equipment within a five year period:

a) will not be eligible for any further change of equipment until the expiry of that five year period; and

b) will be eligible for only one further change of equipment in each subsequent five year period.”

[46] In this case there was a jurisdictional challenge to the applications which was advanced on four grounds.

[47] The employer firstly asserted that any determination of the questions that had been proposed in the applications would require the Commission to exercise judicial rather than arbitral powers.

[48] Secondly, the employer contended that the subject matter of the dispute did not arise under the 2015 EA, and therefore the Commission was not empowered by the DSP in the 2015 EA to deal with the dispute that arose under the 2007 EA.

[49] Thirdly, the employer said that the Commission did not have jurisdiction to deal with the applications because the dispute involved a protest by the applicants regarding seniority, and clause 23.1.5 of the 2015 EA stipulated a procedure whereby any seniority protest had to be made within a period of 14 days after the publication of the seniority list which affected the relevant pilot’s seniority. The failure to comply with the procedure stipulated by clause 23.1.5 was, according to the employer, a process deficiency that deprived the Commission of the powers of private arbitration as provided by a DSP.

[50] Finally, the employer asserted that even if the Commission had jurisdiction to further proceed with the applications, it should exercise its discretion not to determine the applications. In this regard, it was asserted that the Commission should exercise its discretion to refrain from dealing further with the applications because the applications had been taken many years after the position swaps had occurred and any alteration to the seniority position of Ms Baker would provide potential for significant adverse impacts in circumstances where the applications were not taken in a timely fashion, and therefore they were said to involve an abuse of process.

Judicial or Arbitral Determinations

[51] The first ground upon which the employer’s jurisdictional challenge was advanced focussed on the terminology of the three questions that the applications posed for determination. The employer contended that any answer to each of the three questions would involve the exercise of judicial rather than arbitral powers because the questions sought declarations in respect of accrued entitlements or rights.

[52] The first question for determination was expressed in the following terms:

“As per section 52 of the FWA 2009, is Cpt Baker’s current employment covered by the EASTERN AUSTRALIA AIRLINES LIMITED PILOTS ENTERPRISE AGREEMENT 2015 or the SUNSTATE AIRLINES (QLD) PTY LIMITED PILOTS ENTERPRISE AGREEMENT 2015?”

[53] This question clearly seeks a declaration in respect to the legal status of the employment of Ms Baker, the answer to which would ascribe or assign the accrued rights and entitlements of Ms Baker. A declaration of this nature would involve the exercise of judicial power which is beyond any power of private arbitration that could be provided to the Commission by virtue of s. 738 (b) of the Act.

[54] In any event, the determination of the employment status of an individual, in particular whether one or another enterprise agreement covered that individual, could not be a matter arising under an enterprise agreement. It is a matter which involves at very least, contemplation of the coverage terms of two separate enterprise agreements together with an examination of the circumstances surrounding the history of employment details of the individual, Ms Baker. A determination of these issues would be beyond any jurisdiction provided to the Commission for dealing with disputes as contemplated in Part 6-2 of the Act and specifically under s. 738 (b).

[55] The second question for determination was expressed in the following terms:

“Has the Company contravened a term of the Eastern Australia Airlines Limited Pilots Enterprise Agreement 2015 by not publishing the seniority list in accordance with clause 23.1.1?”

[56] Any determination of an alleged contravention of an industrial instrument would ordinarily be a matter for determination of a Court as opposed to a determination made by the Commission exercising the powers of private arbitration to deal with disputes in accordance with Part 6-2 of the Act. It is clear that the Commission does not have power to make an Order for payment arising from a contravention of a term of an industrial instrument. However, it is equally well established that the Commission can make a determination to settle a dispute about the correct construction to be given to the terms of an industrial instrument, and thereby identify the correct application or operation of the terms of an industrial instrument.

[57] Consequently, with some slight alteration to the wording of the second question for determination a proper foundation would be established for the Commission to make a determination of the correct construction that is to be provided to the terms contained in clause 23.1.1 of the 2015 EA. It was unfortunate that the applicants did not attempt to recast any of the questions for determination in response to the jurisdictional objections raised by the employer in respect to the issue regarding the exercise of judicial as opposed to arbitral powers.

[58] The second question for determination goes to the heart of the dispute raised by the applicants. The dispute is essentially about whether the terms of the 2015 EA, in particular clause 23.1.1, when properly interpreted, would permit the position swap arrangements which resulted in inter alia, Ms Baker occupying a seniority position number that was not reflective of her length of service with the employer, but instead adopted the length of service of another pilot, Mr Vella. The answer to this question would clearly be a matter whereby the jurisdiction of the Commission would be properly enlivened when dealing with a dispute and exercising the private arbitration powers provided by the DSP in accordance with s. 738 (b) of the Act.

[59] The third question for determination was expressed in the following terms:

“Did the Company’s actions cause adverse action by discriminating between the existing employees and the new employees [FWA 2009 s. 342 item 1d] and by altering a group of employee’s position, including Cpt McGuire and Cpt Seen to their prejudice [FWA 2009 s. 342 item 1c] by inserting new employees above them on the Eastern Australia Airlines pilots seniority list?”

[60] The third question for determination was a matter that was unequivocally outside of the jurisdiction of the Commission. The third question for determination requires an arbitration decision in respect to an alleged breach of a general protection in respect of a non-dismissal dispute. Subdivision B of Division 8 of Part 3-1 of the Act [ss. 372, 373, 374 and 375] establishes that the Commission’s powers for dealing with a non-dismissal general protections dispute is confined to conducting a conference under s. 374 and does not extend to any capacity for the Commission to arbitrate such a matter. As a matter of statutory construction, the absence of expressed powers in respect to a non-dismissal general protections dispute would prevent such a matter being determined by the Commission purportedly exercising powers of private arbitration vested by a DSP. Any decision that the Commission made in respect to a non-dismissal general protections dispute would be inconsistent with the Act and contravene s. 739 (5).

[61] In summary therefore, the first ground upon which the employer advanced jurisdictional objection to the applications must be supported in respect to questions one and three. The Commission does not have jurisdiction to answer questions one and three. However, a slight alteration to the wording of question two would provide sound foundation for the Commission to proceed to hear and determine the matter in dispute.

Dispute Not Arising Under the 2015 EA

[62] The second ground upon which the employer asserted that the applications were without jurisdiction involved the question of whether the dispute was a matter arising under the 2015 EA. The employer asserted that the evidence established that the actual controversy was the position swaps that occurred in 2009 and 2011. The position swaps occurred during the operation of the 2007 EA which was replaced by the 2010 EA, which in turn was replaced by the 2015 EA. The employer confirmed that it relied upon the authority established in the Stephenson Decision which when applied to the circumstances in this instance, meant that the arbitration powers that were provided under the 2007 EA were extinguished when that enterprise agreement ceased to operate and was replaced by the 2010 EA.

[63] The applicants rejected the proposition that the dispute was not a matter arising under the 2015 EA. The applicants acknowledged that it was past actions that represented the origin of the dispute, but contended that those actions had accumulated to be the causation of the current dispute and that the dispute involved the resultant and continued effect on the applicants arising from the incorrect operation of clause 23 of the 2015 EA.

[64] In addition, the applicants asserted that the Stephenson Decision was not applicable to the circumstances in this instance. In particular, the applicants sought to distinguish circumstances such as those in the Stephenson case whereby the dispute was commenced under a DSP in an enterprise agreement which subsequently ceased to operate and was replaced by another enterprise agreement. The applicant stressed that their applications had been commenced under the 2015 EA which has not ceased to operate. Therefore, the applicants asserted that unless the 2015 EA is replaced or terminated prior to Hearing, then the authority established in the Stephenson Decision did not apply to the applications in this case.

[65] The resolution of this contest as to whether the dispute raised in the applications was a matter arising under the 2015 EA, is provided by the clear identification of the subject matter of the dispute. The applicants contended that the dispute was about a matter arising under the 2015 EA because a seniority list was published during the time of operation of the 2015 EA, and the applicants raised dispute asserting that the seniority list was not published in accordance with clause 23.1.1 of the 2015 EA.

[66] However, the aspect of the seniority list which was contested by the applicants was the asserted error whereby Ms Baker has a seniority number that does not accord with what the applicants asserted to be the correct application of clause 23.1.1. The essence and gravamen of the dispute is the seniority number that has been assigned to Ms Baker. Importantly, Ms Baker did not obtain that seniority number during the currency of the 2015 EA, she obtained that seniority number initially on a temporary basis in 2009, and on a permanent basis in 2011.

[67] Consequently, when the matter that is in dispute is carefully examined and clearly identified it can be distilled to represent a contest as to whether Ms Baker has been assigned a seniority number in accordance with the relevant terms of the applicable industrial instrument. Ms Baker was assigned that seniority number at a time when the 2007 EA was in operation, and not when clause 23.1.1 of the 2015 EA was in operation. It is the assignment of the seniority number to Ms Baker not the perpetuation of that number in subsequent seniority lists, that is the subject matter of the dispute raised by the applications.

[68] The assignment of the seniority number to Ms Baker occurred during the operation of the 2007 EA and a dispute about that issue is not a dispute about a matter arising under the 2015 EA. The applications do not satisfy clause 10.1.1 of the DSP as they raise a dispute that is not about a matter arising under the 2015 EA.

The Operation of Clause 23.1.5 of the 2015 EA

[69] The terms of clause 23.1.5 of the 2015 EA provide additional basis upon which to establish that the applications are absent jurisdictional foundation because the appropriate dispute procedure requirements of the industrial instrument have not been followed. It is relevant to reproduce clause 23.1.5 which is in the following terms:

“23.1.5. A pilot shall be permitted a period of fourteen days after any publication of the seniority list in which to protest to the Company on any omission or incorrect listing affecting his seniority, except that a pilot on leave or duty away from home base at the time of publication of such list shall have a period of fourteen days from date of his return to duty at his home base during which to file such protest. If dissatisfied with the Company's decision the pilot may have recourse to the grievance procedures in this agreement.”

[70] The applicants sought to circumvent any operation of clause 23.1.5. with the assertion that it was not a term about a permitted matter and therefore had no effect. The applicants also asserted that there was no requirement for their dispute to have been raised under clause 23.1.5 and it was only necessary for the steps in the DSP to be followed in order to have the Commission properly empowered to deal with their dispute.

[71] There is nothing impermissible about a clause such as clause 23.1.5 of the 2015 EA which stipulates a specific procedure for disputes that arise in respect to certain subject matter, in this case, a protest concerning an alleged omission or error in respect to a published pilot seniority list. Industrial instruments will often contain provisions which stipulate that disputes about certain subject matters must be dealt with in accordance with certain procedures including time limitations upon identified actions.

[72] Clause 23 is a specific clause that deals with various issues regarding seniority of pilots and clause 23.1.5 establishes a specific regime for dealing with a dispute, (referred to as a “protest”), which involves an alleged omission or error in a seniority list. The subject matter of the dispute identified in the applications falls squarely within the envisaged operation of clause 23.1.5. The applicants’ dispute is about what they alleged to be the incorrect seniority number that has been assigned to Ms Baker. In instances where a dispute is raised which concerns pilot seniority, the general provisions of the DSP must surrender to the specific provisions of clause 23.1.5, generalia specialibus non derogant.

[73] Consequently, the applicants would need to satisfy the requirements of clause 23.1.5 before the matter in dispute could be properly dealt with under the DSP. The applicants’ dispute about the alleged incorrect seniority number assigned to Ms Baker could not comply with the requirements of clause 23.1.5 as neither of the applicants raised any protest within 14 days after the publication of the seniority list which affected their seniority. The relevant seniority list was that which was published in 2009 when Ms Baker was assigned the seniority number previously occupied by Mr Vella on the Eastern pilots seniority list. In fairness, the 2009 list involved a temporary arrangement, and it would have been understandable that no protest would have been made at that time because of the temporary nature of the position swaps. However, the 2011 permanent assignment of inter alia, the seniority number provided to Ms Baker, represented the relevant time at which activation of any protest was required for compliance with clause 23.1.5 or more accurately, the corresponding clause, clause 57.5 of the 2007 EA. The permanency that was declared for the position swaps in 2011 was widely disseminated amongst the Eastern pilot cohort, and the evidence has established that the applicants were aware of the permanency for the swap arrangements when that occurred in 2011 and they raised no protest at that time.

Discretion to Refrain from Exercising Arbitration Powers

[74] It is relevant to note that the unambiguous purpose underpinning clause 23.1.5 is to establish a time limitation for the activation of any dispute regarding pilot seniority. Clause 23.1.5 is in effect, a provision that is designed to avoid the very circumstances that have arisen in this matter.

[75] Pilot seniority is an issue of great significance for pilots. Pilots, almost without exception, understand the significance of their respective seniority position and they closely observe and monitor their relevant seniority lists. A wide range of employment benefits are conferred by virtue of the seniority position held by an individual pilot. Consequently, if the established seniority position of any pilot was open to ongoing challenge and potential subsequent alteration, there would be extensive ramifications which would likely involve a multitude of cascading claims for restitution of forgone employment benefits. The purpose of clause 23.1.5 is to prevent ongoing challenge regarding pilot seniority. In effect, a pilot must raise any protest within 14 days after the publication of a seniority list that affects her or his seniority, or thereafter forever hold their peace.

[76] In the 10 years since Ms Baker was assigned a seniority number that was relative to the length of service of Mr Vella, a multitude of employment benefits (and corresponding detriments) would have been provided in accordance with the seniority number that had been assigned to Ms Baker. It would probably be impossible to unravel the employment benefits and detriments that may be identified if the seniority position assigned to Ms Baker could subsequently be altered.

[77] In the past 10 years, Ms Baker has made personal career and life decisions which have been based upon the seniority position that she was assigned as part of the position swap arrangements that occurred in 2009 and 2011. The belated challenge to her seniority position appears to have in large part, been motivated by concerns that the COVID-19 pandemic might lead to redundancy circumstances. The fear that the “ship is going down” has not generated any contemplation for the concept of “women and children to the lifeboats first” but instead a scramble for “every man for themselves”. A motivation of this nature has been somewhat unfortunate and unedifying to observe.

[78] Ms Baker would be entitled to reject any proposition that might alter the seniority position that she has occupied for the past 10 years. If the jurisdiction of the Commission to hear and determine the applications was properly established, the requirements for the Commission to, when performing functions or exercising powers in relation to a matter arising under the Act, take into account equity, good conscience and the merits of the matter, would lead to a determination pursuant to 10.1.3 f) of the DSP whereby the Commission would determine not to provide further Hearing or subsequent determination of the applications. The applications would be determined in this fashion because the Commission has formed the view that if the applications were successful, an unconscionable injustice would be visited upon Ms Baker.

Conclusion

[79] In this instance, the determination of the jurisdictional objections raised by the respondent employer has involved examination and consideration of the four grounds upon which the employer asserted that the Commission lacked jurisdiction to further deal with the applications.

[80] The first ground upon which jurisdictional challenge was advanced concerned the questions for determination that had been proposed in the applications. The employer asserted that to answer any of the questions for determination would require the Commission to exercise judicial rather than arbitral powers. Upon examination of the three questions for determination it is clear that questions one and three require determinations which are beyond the jurisdiction of the Commission. However, question two could be reworded in order to ensure that there was a sound jurisdictional foundation for the Commission to proceed. In the absence of any other jurisdictional impediment, the Commission would ordinarily dismiss the first ground upon which jurisdictional objection was advanced, and invite the applicants to abandon questions one and three, and reword question two for subsequent determination.

[81] The second aspect of jurisdictional challenge involved the assertion that the dispute raised in the applications was not a matter arising under the 2015 EA and therefore the DSP of the 2015 EA could not provide the Commission with the requisite powers of private arbitration. In order to properly consider this aspect of jurisdictional challenge it has been necessary to clarify exactly what is the matter in dispute. This consideration has established that the matter in dispute was the alleged incorrect seniority number assigned to Ms Baker. The assignment of the seniority number to Ms Baker occurred during the operation of the 2007 EA and a dispute about that issue is not a dispute about a matter arising under the 2015 EA. The applications do not satisfy clause 10.1.1 of the DSP as they raise a dispute that is not about a matter arising under the 2015 EA.

[82] Further, in the circumstances of this case, there is no on-going power of private arbitration available to the Commission. In respect to a matter that arose during the operation of the 2007 EA, the private arbitration powers available under the 2007 EA were extinguished when it ceased to operate and was replaced by the 2010 EA. The perpetuation of the assignment of the seniority number to Ms Baker during the operation of the 2015 EA does not enliven the powers of private arbitration available under the 2015 EA so as to permit the Commission to deal with a matter that arose at the time of the operation of the 2007 EA. In such circumstances, this aspect of the jurisdictional challenge must be upheld as the Commission is required to follow the authority established in the Decision of the Full Bench in Stephenson.

[83] The third ground for jurisdictional challenge involved the operation of a specific provision of the 2015 EA which dealt with any dispute about pilot seniority. Clause 23.1.5 of the 2015 EA establishes a specific regime for dealing with disputes about pilot seniority and importantly it prescribes a time limit for raising disputes of this nature. The applicants’ dispute about the alleged incorrect seniority number assigned to Ms Baker could not comply with the requirements of clause 23.1.5 because neither of the applicants raised any protest within 14 days after the publication of the seniority list which affected their seniority. The applications have not been taken in accordance with the DSP of the 2015 EA as the subject matter of the dispute required adherence with clause 23.1.5 of the 2015 EA, as a prerequisite to any activation of the DSP. Therefore the third ground for jurisdictional challenge must be upheld.

[84] The fourth and final basis for jurisdictional challenge was not actually a question of any absence of jurisdiction but rather a proposition that the Commission should exercise its discretion to refrain from further Hearing of the applications on grounds which asserted that the belated nature of the applications would potentially impact unfairly on Ms Baker and represent an abuse of process. In respect to this aspect of challenge to the applications, the Commission has formed the view that if the applications were successful, an unconscionable injustice would be visited upon Ms Baker. Therefore, notwithstanding any jurisdictional impediment, the Commission would refrain from further dealing with the applications and they would be dismissed accordingly.

[85] In conclusion, the jurisdictional challenge made by the employer is upheld. For the reasons stated above, the Commission does not have jurisdiction to determine the dispute that is the subject of the applications. In any event, considerations of equity and good conscience would prevent further consideration of applications which, if successful, would inflict an unconscionable injustice upon Ms Baker. The applications must therefore be dismissed. Orders dismissing the applications will be issued accordingly.

COMMISSIONER

Appearances:

Mr J Seen and Mr T McGuire appeared unrepresented.

Ms V Bulut of Counsel with Ms O McIntosh from Ashurst Australia appearedfor the employer.

Hearing details:

2021.
Sydney:
April, 22.
May, 12.

Printed by authority of the Commonwealth Government Printer

1 Stephenson v Abetz [PR952743], (28 October 2004).

Jarrod Seen v Eastern Australia Airlines Pty Limited T/A QantasLink