Australian and International Pilots Association v Qantas Airways Limited

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struck out because it did not plead facts sufficient to establish any contravention of s 298K before that provision was repealed on 27 March 2006.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].