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[2007] FCA 581
Federal Court of Australia
2006-03-27
Tracey J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This proceeding commenced by application dated 8 March 2006. A statement of claim was filed on the same day. Both the application and the statement of claim were subsequently amended. On 6 November 2006 I ordered that the applicant's further amended statement of claim be struck out but granted leave to replead on or before 30 November 2006: see [2006] FCA 1441. I expressed some scepticism as to whether a case under the former s 298K of the Workplace Relations Act 1996 (Cth) ("the Act") could be pleaded conformably with the reasons which I gave for striking out the pleading: see [2006] FCA 1441 at [34]. Not deterred the applicant filed a further amended application and a second further amended statement of claim on 30 November 2006. By notice of motion dated 18 December 2006, which was filed on 17 January 2007, the respondent seeks an order striking out the proceeding, or alternatively, the second further amended statement of claim. 2 The amended application sought the imposition of penalties on the respondent and orders for compensation, injunctions and declarations with respect to alleged contraventions of s 298K of the Act. 3 The further amended statement of claim was struck out because it did not plead facts sufficient to establish any contravention of s 298K before that provision was repealed on 27 March 2006. Specifically, it was held that the facts pleaded did not establish that when, in December 2005 and February 2006, the respondent announced a decision to transfer four Airbuses to Jetstar late in 2006 and early in 2007 and that those aircraft would not be crewed by its employees, it had thereby injured or prejudicially changed the position of particular employees or threatened to do either or both of these things. 4 The further amended application retains the claim for relief arising from the alleged contraventions of s 298K. In the alternative, equivalent relief is sought for alleged contraventions of s 792 of the amended Act. 5 The second further amended statement of claim ("the amended pleading") retains the same basic allegations which were contained in its predecessor. In particular, the relevant decision continues to be identified, in para 19A, as a decision that Jetstar would commence international operations by early 2007 and that the respondent would provide Jetstar with the four Airbuses but would not permit those aircraft to be crewed by its employees. That decision is said to have been made in December 2005 and announced at various times in December 2005 and February 2006. 6 The principal amendments to the applicant's pleaded case which are effected by the amended pleading are: · Certain conduct by the respondent which was previously alleged is now said to have occurred in furtherance of the decision. These acts were the respondent's decision that Jetstar would upgrade its air operator certificate so that it could operate wide bodied long haul jet aircraft (para 19), the respondent's decision to purchase 115 Boeing B787 aircraft of which 10 were to be allocated to Jetstar (para 19) and the respondent's decision not to permit the applicant to participate in those negotiations (para 22). · The addition of paras 25I to 25L which allege that, in furtherance of the decision, three identified aircraft had been (and, in one case, was proposed to be) transferred to Jetstar and that the respondent had not permitted those aircraft that had been transferred to be flown by its employees. The alleged transfers occurred on 14 October 2006, 30 October 2006 and 13 November 2006. The fourth transfer was proposed to occur on or about 17 February 2007. · Additional claims are made of lost or diminished expectations relating to annual leave and long service leave (paras 28EA, 28F(d), 28I(ca) and 28LA). · New paragraphs 29 to 31 allege that, as a consequence of the December 2005 decision, some of the respondent's pilots have had their flying hours and remuneration reduced, some pilots have been required, involuntarily, to take annual leave and some pilots employed by the respondent were advised, on or about 21 November 2006, that they might be required to take long service leave if offers of additional leave were not taken up. · Para 31B is amended to plead that, in addition to the making and communication of the decision, its implementation constitutes an injury or alteration to prejudice or a threat to do either or both of these things. 7 In the alternative to the alleged contravention of s 298K of the Act it is alleged that the sole or dominant reason for the respondent's conduct was that the pilots were entitled to the benefit of enterprise bargaining agreements entered into between the applicant and the respondent (para 32B) and that the respondent has, since 27 March 2006, contravened s 792(1) of the Act. 8 The relevant legislation is set out in my earlier reasons: see [2006] FCA 1441 at [4] to [7].
THE RESPONDENT'S CASE 9 The respondent raises many complaints about the amended pleading. They may be summarised as follows: · No new material facts are pleaded which could support the allegation that the respondent had contravened s 298K(1)(b) and/or (c) on or before 27 March 2006. · Some conduct by the respondent which is said to be directed to the implementation of the December 2005 decision such as the transfer of the aircraft and the loss of remuneration and leave entitlements occurred after 27 March 2006 and yet is relied on to support alleged contraventions of s 298K. · The amended pleading is incomprehensible and embarrassing. This is because, in para 31B, the applicant contends that the making and communication of the 2005 decision (which occurred before 27 March 2006) and the steps taken to implement it (which occurred after 27 March 2006) constituted the relevant injury and/or alteration to prejudice. A reason (the pre 27 March 2006 requirement) for the respondent's impugned conduct is said to be that the pilots were entitled to the benefit of the enterprise bargaining agreement (para 32). Although para 32 covers conduct occurring both before and after 27 March 2006, para 32A pleads that "in the premises" the respondent has contravened s 298K. Paragraph 32B then pleads, in the alternative, that the sole or dominant reason (the post 27 March 2006 requirement) for the respondent's impugned conduct was that the pilots had the benefit of the enterprise bargaining agreement. Paragraph 32C pleads that "in the premises" the respondent has, since 27 March 2006, contravened s 792(1) of the amended Act. The respondent complains that, by pleading its case in this way, the applicant has merged the separate causes of action provided for in ss 298K and 792 thereby creating confusion such that the respondent is unable to comprehend the case it is called upon to meet or plead to it. 10 The applicant sought to meet these objections by pointing to the amendment to para 31B which now includes a reference to the "implementation" of the decision. Most of the steps which it is said were taken as part of the implementation process were alleged to have occurred prior to 27 March 2006. The steps relied on by counsel for the applicant which occurred at this time were: · The respondent's decision that Jetstar would upgrade its air operator certificate so it could operate wide bodied long haul aircraft: para 19. · The negotiations in December 2005 and 2006 with the Jetstar pilots' counsel to introduce terms and conditions of employment which would apply to Jetstar pilots involved in long haul flying: para 21. · The respondent's refusal to permit the applicant to participate in those negotiations: para 20. · The respondent's refusal, on or about 10 February 2006, to entertain negotiations with the applicant for alternative terms and conditions of employment upon which the Airbus fleet pilots would carry out the work on the four aircraft allocated to Jetstar: para 25A. · The variation, on or about 10 March 2006, of the Jetstar agreement as a consequence of agreement reached in negotiations: paras 23 and 24. The steps taken after 27 March 2006 which are relied on were the transfer of the three aircraft in October and November 2006: paras 25I, 25J and 25K. 11 It was contended that these amendments overcame the failure to identify prejudicial action, which had occurred prior to 27 March 2006, and which could be relied on to support the alleged contravention of s 298K. It was further submitted that all of the conduct which was said to have been engaged in in order to implement the decision could be relied on to make good the cause of action based on s 792.
CONSIDERATION 12 I agree with the general thrust of the respondent's contentions. 13 Insofar as the applicant seeks to plead a case founded on s 298K it must establish injury and/or conduct to prejudice for a proscribed reason which occurred prior to 27 March 2006. The amended pleading does not overcome any of the deficiencies identified in its predecessor. Such changes as are made do not establish the occurrence of any "injury", and alteration to prejudice or "threat" which occurred prior to 27 March 2006. The conduct referred to in paras 19 and 22 which is now said to have been undertaken in furtherance of the December 2005 decision could not, for the reasons which I gave in explaining my earlier decision, amount to an "injury", alteration to prejudice or a threat to do either or both of those things. Conduct which occurred after 27 March 2006 may or may not support a case asserting contravention of s 792. It cannot be relied on to establish a contravention of s 298K. 14 It is by no means clear, in the amended pleading, that the applicant is alleging that all of the conduct, on which it relied in argument, was taken for the purpose of implementing the December 2005 decision. Some of the conduct (for example that alleged in paras 19, 21 and 22) is said to have been taken "in furtherance" of the decision. Other conduct which is relied on (for example that identified in paras 20, 23 and 24) is not said to be taken "in furtherance" of the decision or in order to implement it. The draftsmen of any defence is left to guess at what is comprehended by "implementation" in para 31B. 15 There is a further difficulty. It relates to the use of the words "in the premises" in paras 31B and 32C. The phrase "in the premises" is normally used in pleadings for the purpose of calling up and relying on the allegations which are contained in paragraphs preceding that in which the phrase is used. In para 31B the phrase picks up all of the conduct of the respondent, both pre and post 27 March 2006, in relation, inter alia, to the alleged implementation of the decision. This is done for the purposes of establishing the existence of injury, alteration of position or threats to do these things. In para 32 it is alleged that a reason for the respondent so acting was the pilots' entitlement to the benefit of industrial instruments. The pleadings in paras 31B and 32 lay the foundation for the allegation, in para 32A, that "[i]n the premises" the respondent has contravened s 298K. Reliance is thus placed, in part, on post 27 March 2006 conduct for the purpose of establishing a cause of action under s 298K. For reasons which I gave in striking-out the previous version of the statement of claims such conduct cannot be relied on to support a claim under s 298K. 16 In para 32B it is alleged, in the alternative, that the sole or dominant reason for the respondent's conduct was and is the pilots' entitlement to the benefit of the industrial instruments. Again, no distinction is drawn between pre and post 27 March 2006 conduct. Yet, in para 32C it is said that "[i]n the premises" the respondent has, since 27 March 2006, contravened s 792(1). The language employed is thus apt to pick up both pre and post 27 March 2006 conduct although it is only alleged that any contravention of s 792 occurred after that date. 17 In my view the amended pleading is embarrassing. It is evident that the applicant now wishes to mount a discrete case alleging contraventions of s 792. It seeks to do this by relying on the same allegations as are relied on in relation to its s 298K case save that the conduct is alleged to have been engaged in for the sole or dominant reason that the pilots enjoyed the benefit of two enterprise bargaining agreements. Yet para 31B of the pleading relies, indiscriminately, on both pre and post 27 March 2006 conduct and such conduct is then relied on, in paras 32A and 32C to allege injury and alteration to prejudice for the purposes, respectively, of ss 298K and 792. 18 There is plainly a need for the applicant to identify, with precision, what conduct, on the part of the respondent, it alleges gave rise to a contravention of s 792 and to identify when that conduct occurred. This is necessary because s 792(4) stipulates that s 792 will not be contravened by conduct that occurs after its commencement (on 27 March 2006) unless that conduct is engaged in for the sole or dominant reason that the employees had the benefit of a particular industrial instrument. Such precision is also necessary because, under s 809, it is presumed that the employer's conduct occurred for the reason alleged. 19 The amended pleading should be struck out. 20 The respondent has sought its costs of the strike-out application. The applicant has reserved its argument on costs pending the outcome of the application and it having the opportunity to examine the Court's reasons. I will hear the parties on costs and the question of whether leave to further amend the statement of claim should be given. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY .
Associate: Dated: 27 April 2007 Counsel for the Applicant: Mr M Bromberg SC
Australian and International Pilots Association
Qantas Airways Limited