(b) Was Qantas' action 'response action'?
152 Even if I was of the view that s 424(1) did stipulate the existence of a jurisdictional fact which made the Court's opinion relevant, I would still, however, be satisfied that Qantas' action was response action. To see why this must be so it is necessary to begin with s 424(1) which operates principally by reference to 'protected industrial action'. That expression is defined in s 408 which, it will be noted, contemplates that the industrial action in question will be 'for a proposed enterprise agreement'. 'Enterprise agreements' are dealt with by Part 2-4. They are, in effect, collective industrial agreements between employers and employees: s 172. Once agreed, they must be approved by Fair Work Australia, provided certain requirements are met. This is provided for in Division 4 of Part 2-4. Importantly, in an ordinary case there is no legal mechanism by which a party's consent to an enterprise agreement may be secured. There is no system, for example, of compulsory arbitration. To that may be admitted two exceptions. The first, of little significance, is the ability of the parties, should they consent, to refer the matter to arbitration by Fair Work Australia: s 240(3). Where the proposed enterprise agreement is a single-enterprise agreement or a multi-enterprise agreement in relation to which a low-paid authorisation is in operation, non-consensual operation may also occur (s 240(2)) but this provision is presently of no moment. The second, with which this case is concerned, arises from the ability of Fair Work Australia and, in some circumstances, the Minister to order a cessation of 'protected industrial action' under Part 3-3 when there is a significant threat to the national economy or to life and limb. If such an order is made then the effect of s 266 is to require Fair Work Australia to arbitrate the competing industrial claims of the parties following the cessation of the protected industrial action.
153 The inability in ordinary circumstances, therefore, of either party to compel the other to agree to an enterprise agreement means that the suasions available to the parties are limited, in effect, to what they can do to each other. Those activities fall into two categories. The first, which might fairly be described as Hobbsian, consists of straightforward industrial action of any variety. This action, if it is not connected to the negotiation of an enterprise agreement, will be unlawful, at least in the sense of constituting a breach of contract. If such activity is engaged in Fair Work Australia has the power to order that it stop: s 418(1). Furthermore, this Court thereafter has the power to order that Fair Work Australia's order be enforced: s 421(3).
154 The second category of actions consists of those set out in s 408 above, that is, that subset of all industrial action consisting of 'protected industrial action'. If the industrial action is protected, then the immunity conferred by s 415 arises. The third kind of protected industrial action specified in s 408(c) is 'employer response action'. This is defined in s 411 which must, however, be read with the definition of 'industrial action' contained in s 19. From ss 19(1) and 19(3) it will be seen that the only species of employer action which is covered by s 19(1) is a lockout. The scheme of Part 3-3 Division 2 is, therefore, one in which the only bargaining tool available to an employer is a responsive lockout.
155 The terms of s 411(a) make clear that, for industrial action to be employer response action, it must be 'organised or engaged in as a response to industrial action' by an employee or a bargaining agent of an employee (which includes a union). The words 'as a response' require only that the lockout be seen as causally connected to employees' industrial action. It does not have to be reasonable, proportionate or rational.
156 AIPA submitted that the evidence before this Court could not justify a finding that Qantas had engaged in response action. There is, it may be accepted, rhetorical force in the proposition that the lockout of the pilots could not sensibly be seen to have been done in response to their industrial action in wearing red ties and making announcements at the end of long haul flights. That action had no effect whatever on flight timetables. On the other hand, the industrial action being pursued by the baggage handlers and maintenance crews was having an obvious and direct effect on Qantas' capacity to carry its passengers in a timely and reliable fashion. Viewed from that perspective, it is not difficult to see the origin of AIPA's argument that the lockout was, in truth, a response to the action of the baggage handlers and maintenance crews and was unrelated to their actions in wearing red ties and making announcements.
157 Despite the superficial attraction of the argument it should nevertheless be rejected. The principal reason for this is the one set out above, that is, the fact that the response required by s 411 does not have to be reasonable, proportionate or rational. Indeed, it would be a response under s 411 even if Qantas' motives were shown to be, as in the case of the pilots they probably were, opportunistic. Further, s 411 neither requires that the response action be taken solely in response to the industrial action of the party with whom the proposed enterprise agreement may be made nor that it be predominantly or even substantially in response to the employee claim action. All that is required is that it is a response. The threshold is low.
158 There was evidence before this Court that Qantas' actions in locking the pilots out was responsive. Most directly this evidence consisted of Qantas' press release by which the grounding of its fleet was announced and by the terms of the lockout notice issued by Qantas to AIPA. As to the former, this was issued by Mr Joyce late on the afternoon of Saturday 29 October 2011. Mr Joyce noted, inter alia, that the pilots had been making 'impossible demands' and that all three unions had been 'running utterly destructive industrial campaigns'. He painted the results as 'unsustainable' and listed them as follows:
70,000 affected passengers
Over 600 flights cancelled
7 grounded aircraft
Nearly $70 million damage
And $15 million in damage for every week that goes by.
159 Mr Joyce thought that the 'unions' industrial campaigns are designed to scare away customers'; moreover that 'the pilots union has also said they are considering escalating their industrial campaign'. Following a catalogue of further travails that might befall Qantas if something was not at once done, Mr Joyce then said:
I am using the only effective action at my disposal to bring about peace and certainty.
In response to the unions' industrial action, I announce that under the provisions of the Fair Work Act Qantas will lock out all those employees who will be covered by the agreements currently being negotiated with the ALAEA, the TWU and AIPA. I have informed the Government of this.
160 As has been mentioned, the lockout notice for the pilots was issued on 29 October 2011 (notices were also issued to the baggage handlers and licensed engineers). It recited, using the language of the Act, that there was to be a lockout of the pilots and that:
The lockout is organised and engaged in as a response to the following industrial action by employees organised by AIPA:
ongoing ban relating to compliance with the Qantas uniform policy and substitution with an AIPA approved uniform policy; and
ongoing ban relating to compliance with Qantas cabin announcement policy and substitution with an AIPA approved announcement.
161 In the hurried proceedings before Fair Work Australia and in those before us, Mr Joyce was not called. It follows that his claims in the press release and those in the lockout notice have never been directly tested (the author of the lockout notice, Mr Strambi, was cross-examined but, as I discuss below, he was clear that the actual decision had been made by Mr Joyce alone). There may be much to be said for the view that both documents are, at least to a degree, self-serving. I do not accept that, if there been no industrial action by the baggage handlers or the licensed engineers, Qantas would have locked out its pilots merely because of they were wearing red ties and making announcements. Perhaps unsurprisingly it was not sought by those resisting AIPA to prove that the wearing of red ties by the pilots might have brought Qantas undone but some limited effort was made to prove the deleterious effects of the cabin announcements. This was initially hampered when it turned out that the text of the announcements had not been placed in evidence before Fair Work Australia. This was rectified before us when the text was admitted (but only on the jurisdictional fact issue). There appear to have been four announcements. The following is typical of all four:
INTERNATIONAL
INBOUND TO AUSTRALIA
Ladies and gentlemen, this is (rank and name)
speaking, on behalf of (rank and names of other
crew), thank you for choosing Qantas today.
Our great Australian airline was founded
in the Australian outback in 1920; for over
90 years, Qantas pilots have been bringing
Australians home, and welcoming visitors to
our shores, while always putting the safety
of our passengers above all else.
We are proud of the world-famous safety
reputation we have built, and we want to
continue to provide you and your family with a
standard of safety that you know you can trust.
Qantas pilots dedicate our careers to
looking after Qantas passengers. We're doing
everything possible to avoid carrying out
any work stoppages, which is why we're
currently making these announcements.
We hope you will support our campaign to
keep Qantas pilots flying Qantas aeroplanes.
To learn more please visit our website:
www.qantaspilots.com
Thank you
162 It is difficult to imagine that this was regarded by Qantas as presenting a genuine threat to it in the on-going negotiations over the enterprise agreement even allowing for heightened industrial sensitivity on its part. Further, the other material upon which Qantas relied to show the menace of the pilots' actions was unpersuasive. It was true that there was evidence that customers were affected by and concerned about the 'industrial action' but the evidence was that the customers did not disaggregate the roles of the three unions in that industrial action. I do not accept that it is plausible that customers were concerned by the pilots' actions.
163 AIPA pointed to a number of other matters which it submitted supported the conclusion that the lockout could not have been response action. The principal one concerned the failure of Qantas to call Mr Joyce to give evidence. This mattered because of the evidence of the three witnesses who were called by Qantas: Mr Strambi (Group Executive, Qantas Airline Operations), Ms Hudson (Executive Manager, Commercial Planning) and Ms Bussell (Executive Manager, Industrial Relations). The effect of their evidence was that the actual decision to lock out the pilots, baggage handlers and licensed engineers had been Mr Joyce's. Mr Strambi had decided to ground the fleet in advance (on the basis of a risk assessment of how staff might react to a foreshadowed lockout) but, as I understood it, that was, in effect, a collateral safety decision. Each of the three witnesses gave evidence that they were not aware of the decision to stage the lockout until Saturday 29 October 2011. That evidence, however, has to be seen in a context which includes the fact that the possibility that a lockout might occur was being actively canvassed within the company in the lead-up to 29 October 2011. Indeed, Mr Strambi's decision to ground the fleet flowed in part from a written risk assessment dated 18 October 2011 of what might flow from a lockout.
164 It is true, therefore, as AIPA submits, that the actual decision was made by Mr Joyce and that his motives are not directly known. This does not, however, prevent inferences being drawn about the matter. AIPA submitted that the inference should be drawn that Mr Joyce was not responding to the pilots' actions when he ordered the lockout because:
1. Mr Joyce's press release did not suggest that he was;
2. the pilots' industrial action consisted only of wearing ties and making announcements;
3. it would be extreme to lock the pilots out for such trivial conduct;
4. the announcements contained no threat to Qantas; and
5. there was no evidence that the announcements were having any effect on bookings.
165 I do not accept (a): there are parts of the press release that link the lockout to AIPA's actions although I am inclined to treat those as tending to be self-serving. On the other hand, I accept each of the matters (b) to (e).
166 What I would infer from this material is that Qantas' actions were very likely opportunistic. It does not follow, however, that they were not responsive: an opportunistic response is a response none the less. I would accept that, so far as the pilots were concerned, by far the most aggravating aspect of their position was their demand that Jetstar pilots on Qantas codeshare flights be paid the same salaries as Qantas pilots. This, from Qantas' perspective, was an in-road into its management prerogatives and, it may be reasonably surmised, was one of considerably more concern to it than the pilots' actions in wearing red ties and making essentially innocuous remarks to its passengers. So too, it would be altogether unrealistic to think that Qantas' concerns about the pilots' industrial action approached the seriousness of its concerns about what was being done to it by the baggage handlers and licensed engineers. The most likely inference, and the inference I draw, is that the lockout of the pilots was done principally in response to the demands being made by the pilots as part of a wider strategy to bring to a head, once and for all, all of its disputes with the three unions. But it does not follow that Qantas did not wish also to end the relatively innocuous industrial action of the pilots. Why would it not take the opportunity, all other things being equal, to put an end to that nuisance whilst bringing the balance of the industrial disputes to the moment of their crisis?
167 AIPA's argument depended for its success on the assumption - ultimately unsound in my view - that Qantas' actions could not be a response to both. It was by that mechanism that it argued that proof of one disproved the other. But the two sets of considerations were not mutually exclusive. They could be mutually exclusive only if there were a requirement that response action had to be reasonable or non-opportunistic but there is no such requirement.
168 In that circumstance, I am not minded to draw any inference that Qantas was not responding to the AIPA industrial action in issuing the lockout notice. I draw the opposite conclusion. It is not necessary to consider, therefore, the further submission that one might more comfortably draw that inference in circumstances where Mr Joyce was not called to give evidence. Had the existence of responsive action by Qantas been a jurisdictional fact I would, therefore, have found that fact proven.
169 I turn then to the next of AIPA's attacks on Fair Work Australia's conclusion on the issue of response action.