Australian Federation of Air Pilots v Flight Crew Officers Industrial Tribunal - [1968] HCA 22 - HCA 1968 case summary — Zoe

CTHHCA

Australian Federation of Air Pilots v Flight Crew Officers Industrial Tribunal

[1968] HCA 22

High Court of Australia|1968-07-01|Before: Owen JJ

View original source

At a glance

Source facts

Court

High Court of Australia

Decision date

1968-07-01

Before

Owen JJ

Source

Original judgment source is linked above.

Judgment (115 paragraphs)

[1]

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Owen JJ. Australian Federation of Air Pilots v Flight Crew Officers Industrial Tribunal [1968] HCA 22

[2]

ORDER Rule absolute for writ of prohibition to restrain respondents from proceeding further upon the award of the Flight Crew Officers Industrial Tribunal made on the first of March 1968 and known as the Air Pilots Interim Award 1968. Order that respondents Australian National Airlines Commission and Ansett Transport Industries (Operations) Pty. Limited pay the prosecutors' costs of the application.

[3]

Prior to the commencement of the year 1966 the respondents, The Australian National Airlines Commission (T.A.A.) and Ansett Transport Industries (Operations) Pty. Limited of which Ansett-A.N.A. is a division, which respondents I shall refer to as the operators, proposed to introduce into use on the domestic airline routes of Australia, a type of jet aircraft known as DC-9 aircraft. Apparently these aircraft were designed for flight operation by a crew of two pilots. The Australian Federation of Air Pilots (the Federation), which is one of the prosecutors, thereupon objected to what has conveniently been called in these proceedings "the two-crew concept" for the operation of these aircraft stating that there should be a crew of three comprised of three pilots or two pilots and a flight engineer. Responding to this objection, which was claimed to be based upon general safety considerations relating to the aircraft, its passengers and crew, the Director-General of Civil Aviation (the Director-General) undertook an investigation of the two-crew concept and, as well, of the experience of its operation in America whence the aircraft originated and where a considerable number of them was then and still is in regular use with a crew complement of two pilots. There is no need to detail the nature and extent of the Director-General's investigation in which the Federation participated. Suffice it to say that on 14th July 1966 the Director-General notified to the operators and to the Federation his conclusion, arrived at as the result of the investigation, that "there is no justification on safety grounds for requiring the DC-9 aircraft to be operated by other than a two-pilot crew for which it has been carefully and specifically designed".

[53]

Unfortunately, in this case, the simple course of expressing explicitly in the award what it intended was not taken, and we are left to construe the award against the background of a number of facts. Most importantly, the award was made against the background of the Air Navigation Regulations and the decisions of the Director-General thereunder. The award provides that the pilots shall serve the operators. The award includes the DC-9 in the list of aircraft in respect of which it fixes hourly rates of pay. It seems to me therefore that, upon ordinary rules of construction, cl. 4 of the award when expanded means that the employer may employ its pilots in the operation of DC-9 aircraft and the pilots shall serve the employer in the operation of DC-9 aircraft. In my opinion, therefore, on its proper construction the award made it a term of the employment of the pilots that they should fly DC-9 aircraft at the request of an operator made conformably to the Air Navigation Regulations and the directives thereunder. That is to say, the outstanding dispute between the two parties was, in my opinion, resolved pro tem. by the interim award. Once the award was made in these terms, the pilots, in my opinion, were bound as a term of their employment and by virtue of the award to fly these aircraft with a crew complement of only two. After the making of the award it would not only have been lawful for the operator to operate a DC-9 aircraft with a crew complement of two, but an order by the operator to a pilot to fly with a full complement of two would have been a lawful order within the employment of the pilots and a refusal by a pilot to obey such an order would have been in breach of the award. To fly the aircraft with such a crew complement would be to perform work in accordance with the award. As I have indicated, the Tribunal included in the award a provision in a form commonly known as a bans clause: see cl. 14. It purported thereby to bind only the Federation. If cl. 4 upon its true construction did not require the pilots whilst employed by the operator to fly DC-9/30 aircraft with a crew complement of two pilots, there was no immediate significance in the bans clause. In terms it dealt only with the performance of work in accordance with the award. But quite clearly it was awarded as a means of precluding the Federation from pursuing its direction to the pilots not to fly the aircraft with a crew complement of two pilots. Therefore, unless the award upon its true construction prescribes that the pilots shall fly the aircraft in accordance with the minimum standards set by the Director-General, the bans clause has no operation at all in relation to the DC-9 aircraft. Consequently, in my opinion, the presence of the bans clause in the award reinforces the construction which I would otherwise put on the other portions of the award. On that footing, upon the authorities as they exist, the bans clause was valid as a provision to protect the settlement effected by the award. If there were no more to the matter, I would conclude that for these reasons the interim award was valid.

[71]

The question whether it was in fact unsafe to fly DC-9s with fewer than three flight crew officers was obviously not an industrial question, and the dispute upon it was not an industrial dispute. The question whether the pilots' terms of employment obliged them to fly the aircraft with the minimum crew permitted by law when required by their employers to do so depended upon the true interpretation of the terms of employment, including the terms of the Agreement that has been mentioned and the relevant provisions of the Air Navigation Regulations, and it was, therefore, a question for judicial and not arbitral determination. It is true that the Agreement (cl. 23b) had reserved the question of "crew complement" in relation to DC-9 aircraft, but I should understand this to mean only that the Federation was not precluded by the Agreement from raising the topic of crew complement for DC-9s during the currency of the Agreement as a topic proper for further negotiation. If that was the effect of the reservation there was room for a dispute to arise upon the question whether there should be added to the terms of employment a provision requiring the employers to assign three flight crew members for every DC-9 flight. But such a dispute had not arisen. Each side was standing firmly upon its own interpretation of the Air Navigation Regulations and the terms of employment as they stood, each contending that what was referred to as "the safety issue" was not within the Tribunal's province. The Tribunal, though apparently with some doubt, accepted this contention and turned to consider, as a distinct matter, whether it could do anything to keep the DC-9s flying, by stopping the Federation from carrying out its threat to direct pilots not to fly them unless three air crew members were provided. The threat was completely inconsistent with the Federation's own contention that the commanding pilot of an aircraft had the responsibility of deciding what crew was needed for the safety of the flight, for it amounted to saying, as indeed counsel for the Federation made clear before this Court, that the decision would not be left to the commanding pilots: it had been made for them by the Federation, and, as I understood counsel to indicate, by a majority and not a unanimous vote. But what is important on the present application is that the Federation's threat is to be distinguished from the demand for three air crew members which lay behind it. Carrying it into effect would create industrial disruption, but not an industrial dispute susceptible of arbitral settlement. It seems necessary to repeat that industrial disruption, or a threat of such disruption, is not a dispute, though it may be and usually is the product or the evidence of a dispute. Consequently a power to settle disputes can never validly be exercised to deal with the disruption or threat of disruption as if it were itself a dispute to be settled. The power must be exercised, if at all, by dealing with the matters in difference which lie behind the disruption or threat, and then a bans clause may be added to make the settlement more effective. These are trite propositions in industrial law.

[72]

Notwithstanding the absence of an industrial dispute, however, the employers were sufficiently ill-advised to call upon the Tribunal to intervene by laying upon the Federation a prohibition against being a party to or concerned in any ban, limitation or restriction upon the performance of work of the pilots. Perceiving, or at least having some vague notion, that this could not be done unless incidentally to the making of an award, they set themselves to get something that would look like an award. They invited the Tribunal to make "an interim award" embodying such of the existing terms and conditions of employment of pilots by the employers as should be thought appropriate in respect of a short period, and to add a bans clause as ancillary to that award. They stressed again and again that they had no wish or intention to depart in any respect or degree from the provisions of the subsisting Agreement. They even promised that they would treat the Agreement as continuing to regulate the employment of the pilots, in the sense that if there should appear any inconsistency between the award and the Agreement the latter should prevail. With quite amazing naiveté they thus sought an award which should be no more than a "vehicle" for the bans clause, and actually submitted a draft award differing in some details from the Agreement, not because they wanted to depart from the Agreement in any respect, but because they wanted to create a semblance of a dispute and so give an award an appearance, a false appearance as it would necessarily be, of settling a dispute. Indeed they invited the Federation's representatives to say before the Tribunal that they would not agree to the apparent departures from the Agreement, so that there might appear to have been something like the service and rejection of a log of claims. All this was a pretence, and a necessarily unsuccessful pretence, for it was apparent to everyone that no dispute existed upon a single topic with which the draft award purported to deal.

[99]

DC-9 aircraft are and have been for some time used by the operators in their inter-State trade. In 1966 an agreement, to expire in 1969, was entered into between the operators and the Federation which dealt in detail with the terms and conditions of the employment by the operators of airline pilots. Both before and after the making of the agreement, there has been a dispute between the operators and the Federation as to whether DC-9 aircraft should carry a crew of two pilots, as the operators have always contended, or a crew of three pilots or two pilots and a flight engineer, as the Federation has contended, and when the agreement was entered into questions relating to this issue, which has been described as a "safety issue", were reserved for future discussion. Up to the present time this issue has not been resolved. By reg. 194 of the Air Navigation Regulations made under the Air Navigation Act, it is provided that the minimum operating crew of an aircraft shall not be less in number than that specified in the certificate of airworthiness of the aircraft issued by the Director-General of Civil Aviation and shall be supplemented by such additional operating crew members as the Director-General considers necessary and so directs. In July 1966 the Director-General informed the operators and the Federation that he had "concluded that there is no justification on safety grounds for requiring the DC-9 aircraft to be operated by other than a two-pilot crew for which it has been carefully and specifically designed" and I assume that the relevant certificates of airworthiness so provided. The Federation, however, continued to maintain its attitude that an operating crew of three should be employed. In September 1966 the Director-General informed the parties that "the inclusion of a third operating crew member would result in an unacceptably lower standard of safety" and that he had therefore decided that the operating crew should be limited to two pilots. In January 1968, however, after further consideration had been given to the question, he notified the parties that he had come to the conclusion that the presence of a third crew member to whom was assigned certain limited duties would not prejudice the safety of the operations of the DC-9 aircraft and that he was therefore prepared to vary the restriction which he had imposed in September 1966 "so as to permit a third crew member to be carried if the operators see any need to do so", provided however that the duties of any third crew member should be limited to those prescribed and that such member should be specifically authorized by him to be so employed. Following this communication from the Director-General, a conference was held on 31st January 1968 between the operators and representatives of the Federation at which the latter stated that the Federation's stand on the matter in dispute had not been altered and that it "would, on the ground of safety in operation require" DC-9 aircraft "as from 1st March 1968 to be operated by a crew of three pilots and within ninety days of that date to be operated by two pilots and a flight engineer".

[110]

Both parties contended, however, that the Tribunal had no jurisdiction to make an award or settlement of the manning question since that, they said, was a "safety matter" with which the Tribunal could not deal. The Tribunal was disinclined to accept that view. It was disposed to think that it was competent to deal with that question and, if it thought fit, make an award in settlement of the dispute, provided of course that any award so made was not inconsistent with any law of the Commonwealth or any instrument made or issued under such a law (s. 88ZC (1)). On that I refrain from expressing any opinion. It does not seem to me to arise in these proceedings for the reason that, having regard to the submissions made by both parties that it would be beyond its powers to do this, the Tribunal refrained from dealing with that question. The difficulty that faced the operators, however, arose from the fact that what has come to be called a "bans clause" cannot be made in the absence of an award made in settlement of an industrial dispute since the purpose of such a clause is to aid in the enforcement of an award. The operators sought to overcome this difficulty by asking the Tribunal to take some of the clauses of the agreement of 1966 made between them and the Federation and, to use the words of the Tribunal, "convert" them into an award. This the Tribunal ultimately did, adding to them a "bans clause". The clauses of the agreement thus incorporated in the award were those headed "Contract of Employment", "Hours of Duty", "Base Pay - all Pilots", "Gross Hourly Pay - Captains", "Hourly Pay - First Officers", "Command Pay - First Officers", "Overseas Pay", "Additions to Salary", "Minimum Guarantee" and "Special Duties Allowances". In putting these clauses into the award some minor alterations were made but, as the operators made clear to the Tribunal and the Tribunal itself said, it was not intended that the terms of employment laid down in the award should conflict in any way with the terms of the agreement of 1966. But there was no dispute about the matters dealt with under these heads in the agreement and, as I have said, the subject of the manning of DC-9 aircraft was expressly excluded. There had been no breach or threatened breach of those clauses by any of the parties to the agreement and no dispute about its terms and there was therefore no basis for the award. The only dispute was one upon which the award did not touch for the simple reason that both parties insisted that the Tribunal could not deal with it. Accordingly I am of opinion that the award was not made for the purposes of settling an industrial dispute and that an order absolute for prohibition should be made.