s.739 - Disputes dealt with by the FWC

Applications to deal with a dispute - jurisdictional objections - no disputes complying with the dispute resolution procedure requirements before the FWC

• [1] The Australian Federation of Air Pilots (the Applicant) made an application to the Fair Work Commission (the FWC) under s.739 of the Fair Work Act 2009 (Cth) (the Act) to have the FWC deal with disputes arising under three enterprise agreements, as follows:

PHI International Broome & Truscott Helicopter Pilots Enterprise Agreement 2022 (being matter C2023/6391)

PHI International Pilbara Helicopter Pilots Enterprise Agreement 2022 (being matter C2023/6395)

PHI International Gascoyne Helicopter Pilots Enterprise Agreement 2022 (being matter C2023/6396)

• [2] In each case, the dispute related to the operation of the relevant annual leave clause and specifically, the means by which a pilot's annual leave entitlement is acquitted. PHI (International) Australia Pty Ltd (the Respondent) has objected to the FWC dealing with each of the three disputes, on the basis that the FWC does not have jurisdiction because none of the disputes meet the requirements of the various dispute resolution procedures in the agreements.

• [3] For reference, the dispute resolution procedure in the PHI International Broome & Truscott Helicopter Pilots Enterprise Agreement 2022 states as follows:

20.1 Preamble and Principles of the Disputes of the Disputes Resolution Process (DRP)

20.1.1 In the event of a disagreement about any matter arising under the agreement, including a dispute regarding the interpretation or application of this agreement, the NES (including sections 65(5) or 76(4)), or any other work related matter (including a dispute about whether a workplace right has been breached) or matter pertaining to the employer-employee relationship, the parties to the dispute will attempt to resolve the dispute in accordance with the following Disputes Resolution Process (DRP).

20.1.2 The parties agree to participate in the DRP in good faith and in recognition that the satisfactory resolution of any dispute is in the interests of all parties to this agreement.

20.1.3 A Pilot subject to this Agreement may initiate a dispute at any time.

20.1.4 A Pilot(s) initiating a dispute may appoint and be accompanied and represented at any stage by another person, organisation or association, including a Union representative or Company association in relation to the dispute. Ready access to Pilot shall be provided to the Pilot's nominated representative so that relevant information and instructions can be provided. However not at a time such that it will impact with the Company's normal contracted operations.

20.2.1 Once a dispute has been initiated the pilot shall notify the HR Manager, Australia who shall refer the dispute to the appropriate person within the management structure who shall, unless otherwise agreed, meet and confer with the Pilot within seven (7) days at the local workplace level in an attempt to resolve the dispute.

20.2.2 If the dispute is not resolved under clause 20.2.1, the dispute may be referred to FWC for resolution by mediation and/or conciliation and arbitration. If arbitration is necessary FWC may exercise the procedural powers in relation to hearings, witnesses, evidence and submissions which are necessary to make the arbitration effective.

20.2.3 It is a term of this Agreement that while the dispute resolution procedure is being conducted work shall continue normally, unless a Pilot has a reasonable concern about an imminent risk to his or her health or safety, and pending the resolution of the dispute the subject matter of the dispute shall be preserved and the status quo retained.

20.3.1 The decision of FWC will bind the parties, subject to either party exercising a right of appeal against the decision to a Full Bench of FWC. For clarity, it is a term of this Agreement that the parties do have a right of appeal.

20.4.1 The parties agree that FWC shall have the power to do all such things as are necessary for the just resolution of the dispute.

20.4.2 FWC shall be provided access to the workplace to inspect or view any work, material, machinery, appliance, article, document or other thing or interview any Pilot who is usually engaged in work at the workplace.

20.4.3 The parties agree that FWC may give all such directions and do all such things as are necessary for the just resolution and determination of the dispute. This includes but is not limited to mediation or conciliation or arbitration.

20.5.1 The parties agree that to the extent that any decision of FWC alters the rights and responsibilities of any of the parties to the agreement that those rights are so altered and enforceable in a court of competent jurisdiction.

• [4] As it appeared to me that the dispute resolution procedures in the PHI International Pilbara Helicopter Pilots Enterprise Agreement 2022 and the PHI International Gascoyne Helicopter Pilots Enterprise Agreement 2022 were identical, including in terms of their numbering, to the dispute resolution procedure set out above, I proposed at the hearing that the jurisdictional matters could be dealt with as a group. The parties accepted this approach and so references hereafter to the dispute resolution procedure (the DRP) are, unless specified otherwise, taken to be a reference to each of the procedures in the three agreements. References to clause numbers are a reference to the clause number in the PHI International Broome & Truscott Helicopter Pilots Enterprise Agreement 2022 and its corresponding clause in the other two agreements.

• [5] The matter of jurisdiction was first scheduled to be heard on 14 February 2024 and the parties made submissions in advance of this date. At that hearing, I raised with the parties the findings of the Full Court of the Federal Court in Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Yallourn) [2018] FCAFC 146 and also the findings of Deputy President Asbury (as she then was) in Australasian Meat Industry Employees Union v Primo Foods Pty Ltd (Primo) [2023] FWC 570. It seemed to me that these decisions may be of some relevance and as such, the hearing was adjourned to allow the parties to make submissions with respect to the relevance and effect of those decisions. Both parties made such submissions and the hearing resumed on 28 March 2024.

• [6] The Respondent sought to be represented at the hearing and made submissions with respect to section 596(2) of the Act. I was persuaded by the Respondent's submissions made with respect to section 596(2)(a) regarding the complexity of the issue and the assistance counsel could provide the FWC and granted leave to be represented.

• [7] Mr David Stephens, the Senior Industrial Officer of the Applicant provided witness evidence for the Applicant and Mr Tim Hartley, the Respondent's Head of Flight Operations (Chief Pilot) gave evidence for the Respondent.

• [8] The Respondent's initial submissions contended that the FWC did not have jurisdiction to deal with the disputes on the following grounds:

(a) "Only a pilot may initiate or be a party to a dispute under the Broome, Gascoyne or Pilbara Agreements.

(b) The dispute the subject of each application was not initiated by a pilot, but was instead initiated by the Applicant, apparently acting on its own behalf.

• (c) No pilot is actually in dispute with the Respondent about any of the matters identified in the relevant Notices of Dispute."[1]
• [9] The Respondent then expanded on each of the above points. With respect to point (a), the Respondent notes that the DRP provides, on its plain terms, that only a pilot can initiate a dispute, pursuant to clause 20.1.3 as set out above. Further, the Respondent submitted that clause 20 sets out in clear terms the Applicant's role in a dispute and such role does not include initiating or being party to a dispute in its own name or right.

• [10] With respect to point (b), the Respondent submitted that the Applicant's notices of dispute do not identify any pilot or pilots as the initiator of the dispute, but rather identify the Applicant in its own name and right as being the initiator of the dispute. As such, none of the disputes can be said to have been, as per clause 20.1.3, initiated by a pilot.

• [11] With respect to point (c), the Respondent submitted that the Commission could not, on the basis of the applications made by the Applicant, be satisfied that any pilot is actually in dispute with the Respondent about any of the matters set out in the dispute notices. In summary, the Respondent submitted that no dispute had ever been initiated as per the requirements of the DRP, and that the Commission was therefore not empowered to deal with the matters.

• [12] In his initial witness statement, Mr Hartley states that only one pilot, Mr Frank Pelegry, had ever initiated a dispute regarding the acquittal of annual leave. The Applicant represented Mr Pelegry in this matter which was resolved between the parties. Mr Hartley expresses some surprise regarding the current disputes as he states that at the time he received the letters from the Applicant regarding the issue he was not aware that any other pilot had concerns regarding their annual leave, but was also aware that no pilot had initiated a dispute. Mr Hartley further stated that he had made enquiries with the Respondent's HR staff to see if they were aware of any disputes and they had advised him that they were not.

• [13] Further to this, it was Mr Hartley's evidence that the Broome Pilot Committee, being a group of pilots responsible for negotiating a new agreement had stated that they were aware of the disputes lodged by the Applicant, did not support those applications and had advised the Applicant of their views. Under cross-examination Mr Hartley conceded that he had been made aware of a dispute regarding annual leave in April 2023, although he later attempted to retract and qualify this to say that he thought the disputes were more about rosters. However, Mr Hartley agreed that he had received the dispute notification and that he had been delegated to deal with this dispute by the National Human Resources Manager.

• [14] In its initial submissions, the Applicant submitted that the question before the FWC was one of construction. It submitted, on the issue of construction, as follows (citations removed):

"The relevant principles of construction are settled. First, the starting point is the ordinary meaning of the words, read as a whole and in context. Second, the aim of interpretation is to divine and give effect to the meaning of the words that their authors intended them to convey. Third, the words of an enterprise agreement ought not be interpreted divorced from its industrial realities, or from how a reasonable person in the position of the parties would have understood it. Fourth, regard must be had to the manner of the enterprise agreement's expression, the context in which it operates, and the industrial purpose it serves. Fifth, generous and purposive constructions are to be preferred over literal or narrow constructions."[2]

• [15] The Applicant then submitted, in summary, as follows:

The wording of clause 20.1.3 establishes that pilots have a right to initiate a dispute, but this should not be taken to limit or exclude the rights of the other parties.

(a) Both PHI and AFAP are defined as parties in clause 4; and

(b) The preamble to clause 20.1 makes it clear that the DRP is to resolve disputes between the parties; and

(c) The industrial context supports an interpretation that AFAP and PHI can resolve disputes which is consistent with the preamble; and

(d) If the clause had intended to constrain the rights of two out of three parties it would have expressed this in clear terms; and

(e) The AFAP did not initiate the dispute but rather members expressed concern and then the AFAP notified PHI of a dispute on behalf of those members; and

(f) The AFAP was appointed albeit not in any formal sense and therefore is representing a member or members; and

• (g) The interpretation for which the Respondent contends is not consistent with the objects of the Act to provide accessible and effective procedures to resolve grievances.[3]

In support of point (g), the Applicant drew my attention to the decision of Commissioner Crawford in Adann Sadiki and Others v Vee H Aviation Pty Ltd T/A Corporate Air [2023] FWC 2105 where the Commissioner, citing the decision in AMWU v Transdev Melbourne Pty Ltd [2021] FWC 978 stated as follows:

"the scope of the dispute settlement procedure should not be narrowly construed as "to do so would be contrary to the notion that certified agreements are intended to facilitate the harmonious working relationship of the parties during the operation of the agreement."

• [16] In his initial witness statement, Mr Stephens disputes the Respondent's assertion that no pilot is actually in dispute with it regarding the matters set out in the Applicant's dispute notices. Mr Stephens gives evidence of a survey conducted by the Applicant of its members on the relevant sites and states that the survey was motivated by the concerns of various members regarding the taking of annual leave and the ability to work a 15/13 roster. I note that the Applicant agreed to provide a redacted version of the responses to the surveys and these responses were in evidence. There were seven surveys in evidence, three from members of the Applicant covered by the PHI International Gascoyne Helicopter Pilots Enterprise Agreement 2022 (the Gascoyne Agreement) and four covered by the PHI International Broome & Truscott Helicopter Pilots Enterprise Agreement 2022 (the Broome Agreement).

• [17] In response to the Applicant's question "Do you wish to access annual leave at a time or times of your choosing or mutual agreement with the company?", all three of the members covered by the Gascoyne Agreement answered yes and the four members covered by the Broome Agreement answered as follows:

(a) Absolutely I do!!!!!

(b) Times of my choosing would be preferred situation.

(c) Yes I do wish to access annual leave at a time of our choosing with mutual agreement with the company.

(d) Mutual agreement with the company.

• [18] In response to the Applicant's question "Do you want the AFAP to represent you in the FWC in relation to annual leave?" the three members covered by the Gascoyne Agreement answered as follows:

(a) TBD

(b) Unequivocally yes

(c) Yes

The four members covered by the Broome Agreement answered as follows:

(a) Yes please

(b) Yes

(c) Yes I would like the AFAP to represent me in the FWC in relation to annual leave..

(d) Yes

• [19] Mr Stephen's other evidence was that the Applicant had made various representations to the Respondent to try to resolve the matter, but these had been unsuccessful. As a result, the Applicant had notified the Respondent of the dispute on 12 October 2023 and referred the matter to the FWC on 20 October 2023. I note that Mr Stephens was not cross-examined.

• [20] In its reply submissions, the Respondent rejected the Applicant's arguments regarding the proper construction of the DRP. The Respondent cited AMIEU v Golden Cockerel Pty Ltd [2014] FWCFB 7447 at [41] and AMWU v Berri Pty Limited [2017] FWCFB 3005 at [114] (Berri) as support for the proposition that in construing a clause in an enterprise agreement, it is first necessary to determine if the clause has a plain meaning or contains an ambiguity. The Respondent further submitted, in summary, as follows:

(a) Clause 20 is not ambiguous and has a plain and ordinary meaning. The FWC does not need to, nor can it, look beyond the ordinary meaning.

(b) The term "Pilot" cannot be conflated with "Party".

(c) The terms Pilot, Company and Union are used purposefully throughout the Agreement and thus should be accorded the same meaning in every clause, with no special expansion in any particular clause - for example clause 20.

(d) In any case, the Act does not provide for bargaining representatives to be parties to an agreement but merely covered by the agreement. As such, the actual parties to the agreements are the Respondent and the pilots covered by them.

(e) As per Berri, words in an agreement must prima facie be given some meaning. Limiting the ability to initiate a dispute to a pilot gives meaning to the wording of clause 20.1.3 and that wording is then able to be read harmoniously with the remainder of clause 20.

(f) This is in contrast to the effect of construing clause 20.1.3 in the manner contended for by the Applicant, as under that construction the clause would have no work to do.

(g) Clause 20.1.3 is not drafted so as to provide an example of who may initiate a dispute, but rather to specify and limit who can initiate a dispute.

• (h) The Applicant is confined to a representative role, albeit that if appointed by a Pilot it may notify HR of a dispute. If the Applicant could initiate a dispute in its own right, then clauses 20.1.4 and 20.2.3 would have no work to do.[4]
• [21] The Respondent also addressed the notion that the FWC ought to imply certain terms into the agreements. It noted the case precedent in support of the proposition that terms are not easily implied into enterprise agreements, and that implied terms must meet certain criteria. Those criteria, set out in BP (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 are that an implied term:

"(a) is reasonable and necessary for the effective operation of the clause;

(b) must be so obvious that it goes without saying; and

(c) must not contradict any express term of the agreement."

• [22] The Respondent submitted that the Applicant's proposition that the FWC imply that any party covered by the Agreement can initiate a dispute does not meet the above criteria. It submitted that that this is so because:

(a) it is not reasonable and necessary for the operation of the clause, based on its plain meaning; and

(b) it is not obvious in that it is not typically the case that a union has standing to bring a dispute and there is no requirement in section 186(6) of the Act that all parties have standing to bring a dispute. Further, it was open to the parties to limit the scope of the DRP such that only a pilot could initiate a dispute; and

• (c) Such an implication would be directly inconsistent with the express terms of clause 20.1.3.[5]

• [23] With respect to compliance with the DRP and the role of the FWC, the Respondent submits that:

(a) The Applicant has no standing to initiate a dispute on its own behalf.

(b) Unless a pilot has initiated a dispute and has followed the procedure as set out in clause 20 prior to lodging an application with the Commission, the Commission has no jurisdiction to deal with a dispute.

(c) Common-sense and industrial reality dictate that a dispute with the Respondent cannot be initiated unless and until the Respondent actually knows about the concern or claim that is alleged to be the subject matter of the dispute.

(d) The evidence of Mr Hartley demonstrates that no pilot sought to initiate a dispute prior to the filing of the applications with the FWC.

(e) As per section 739 of the Act and the finding in Australian Rail, Tram and Bus Industry Union v Asciano Services Pty Ltd t/a Pacific National (Asciano) [2017] FWCFB 1702, parties must comply with any mandatory pre-filing steps in an enterprise agreement.

(f) The requirements of clause 20.2.1 of the DRP have not been followed.

(g) The terms of the Applicant's survey of members did not contemplate the requirements of clause 20.2.1 but instead jumped ahead to clause 20.2.2.

• [24] In summary, the Respondent submitted that in the absence of a pilot having initiated a dispute, the FWC has no jurisdiction in the matter. It is also appropriate to note that the Respondent submits, based on the evidence of Mr Hartley, that there are no pilots who are actually in dispute with the Respondent over the annual leave issue and as such it is only the Applicant who is in dispute.

• [25] In his reply witness statement, Mr Hartley's evidence is that none of the correspondence appended to the initial statement of Mr Stephens related to the three disputes currently before the FWC. Mr Hartley confirmed this position in re-examination. It was his evidence that those items that involved the Broome Pilot Committee were regarding daily travel allowance and rosters and the correspondence between himself and a Mr Wayne Thompson related to a matter that he regarded as resolved.

• [26] In cross-examination, and with respect to the notice of dispute from the Applicant to the Respondent dated 12 October 2023, Mr Hartley agreed that he had seen that correspondence, which invited the Respondent to confer with the Applicant regarding the dispute. Mr Hartley's evidence was that he was unaware of anyone responding to this correspondence on behalf of the Respondent, or of anyone on behalf of the Respondent identifying for the Applicant the relevant person within the Respondent's organisation who would be dealing with the dispute. Mr Hartley conceded that the identification for the Applicant of the person dealing with the dispute on behalf of the Respondent was the next logical step for the Respondent to have taken upon receipt of the dispute notice. The Applicant put to Mr Hartley that given the Respondent had not identified the relevant person to deal with the dispute then the reason that the Applicant and the Respondent did not meet between 12 October 2023 and 20 October 2023 was due to the inaction of the Respondent. Mr Hartley responded that he would not know the answer to that question.

• [27] I noted earlier that I had raised with the parties the findings of the Full Court of the Federal Court in Yallourn and also the findings of Deputy President Asbury (as she then was) in Primo. As the decision in Primo drew upon the findings in Yallourn, I will set out the relevant section of the Yallourn decision, which is as follows:

"However, both the model term and cl 28 are intended to provide, as s 186(6)(a)(i) requires, "a procedure that requires or allows [the Commission] ... to settle disputes ... about any matters arising under the agreement" (emphasis added). Therefore, a literal construction of cl 28 that precluded any of the five unions that are parties to the Yallourn agreement from initiating a dispute about a matter arising under it for which it has a workplace right, would defeat the purpose which the first three paragraphs of cl 28 (preceding cl 28.1) and ss 186(6) and 341(1) required the dispute resolution process in the clause to serve.

Energy Australia's argument that the Yallourn agreement did not provide any basis for any of the five unions to raise a dispute under cl 28 must be rejected. That is because, if the five unions themselves could never raise or pursue a dispute about their workplace rights, as employee organisations, covered by the Yallourn agreement within the meaning of ss 53(2), 172(1)(b) and 186(6)(a)(i), then cl 28 would not provide a procedure to settle a class of category 1 matters that could arise under the enterprise agreement. Accordingly, cl 28 would not comply with s 186(6)."[6]

• [28] In essence, the Yallourn decision appears to me to make it clear that when a union is covered by an agreement, the dispute resolution clause in that agreement must, to satisfy section 186(6) of the Act, give the union the capacity to raise and pursue a dispute in its own name. If the Respondent's view in this matter were to be accepted, then potentially the DRP would not be compliant with the Act.

• [29] With respect to this matter, the Respondent submitted in summary, as follows:

(a) The principles of interpretation are still relevant and the FWC needs to look at the ordinary meaning.

(b) Unlike the disputes clause in Yallourn, the DRP in the agreements is unambiguous.

(c) The Court in Yallourn needed to resolve ambiguity and quite properly construed the clause broadly.

(d) Given the general principle that all words must be given some meaning and effect, and given the lack of ambiguity, there is no need to disturb the DRP in the agreements.

(e) Notwithstanding the Respondent's position as set out above, in any case the DRP does not allow, as the clause in Yallourn did allow, a party to short-cut the steps in the disputes process and refer a dispute to the FWC at any point. With respect to this the Respondent again noted that clause 20.2.1 of the DRP, being a precursor to the FWC's involvement, had not been utilised by the Applicant.

• [30] With respect to Yallourn the Applicant submitted that the principles set out in that case establish that it is authorised, by virtue of ss 53(2), 172(1)(b), 341(1) and 186(6)(a)(i) of the FW Act to initiate a dispute under the DRP as a party who is covered by the Agreement. Citing various sections of that decision, the Applicant further submitted as follows (citations removed):

"Limitations in the literal phrasing of the procedure that cover disputes involving only an employer and employee(s) to the exclusion of a union(s) covered by the enterprise agreement would defeat the purpose of s.186(6)(a)(i) to provide a procedure to settle disputes about any matter arising under the agreement as contemplated by ss 186(6) and 341(1).

A dispute settlement procedure clause that precludes a union from ever raising or pursuing a dispute about their workplace rights, as a union covered by the agreement, within the meaning of ss 53(2), 172(1)(b) and 186(6)(a)(i), would not comply with s 186(6).

Such a clause should be construed to ensure it achieves its stated objective, and the requirements of s 186(6), and should not be read down."

• [31] The Applicant also submitted that the decision in Yallourn was consistent with other judgments and directed my attention to the decision in Burwood Cinema Ltd v Australian Theatrical and Amusement Employees' Association [1925] HCA 7; 35 CLR 528 where Starke J made the following observation regarding the role on unions under the former Arbitration Act:

"An organization registered under the Arbitration Act is not a mere agent of its members: it stands in their place, and acts on their account and is a representative of the class associated together in the organization. It is, as my brother Higgins said, " a party principal," and " not a mere agent or figurehead." The acts and conduct of its members are relevant, no doubt, upon the question whether the dispute submitted to the Court by the organization or referred to it by other means is real or illusory, but otherwise their acts and conduct are immaterial."

• [32] The Applicant submitted that this principle had been confirmed in other matters including Regional Express Holdings Ltd v Australian Federation of Air Pilots [2017] HCA 55; (2017) 276 IR 454 where at paragraph 28 the High Court stated as follows:

"As has been explained, if the Act's conception of an organisation's entitlement to represent the industrial interests of a person were one of entitlement that arises by reason of the person's membership of the organisation, there would be no point in the provisions of the Act which provide that it is a condition of an industrial association's entitlement to take action in relation to a person who is a member of the organisation that the organisation be entitled to represent the industrial interests of the person. And if the Act's conception of an organisation's entitlement to represent the industrial interests of a person were one of entitlement that arises by reason of a specific authorisation or consent, it is to be expected that the requirement for authorisation or consent would be expressed, as it is in s 176(1)(c), in terms of the person appointing the organisation in writing to take that action. As it is, the fact that s 176(1)(c) coupled with s 176(3) draws a clear distinction between providing for a person appointing an organisation in writing to be that person's bargaining representative, and the necessity for such a bargaining representative to be entitled to represent the industrial interests of the person, operates as a further, powerful indication that the latter is not limited to entitlement which arises by reason of authorisation or consent."

• [33] At the hearing, the Respondent made some additional oral submissions to supplement its written submissions. Some of these arose by virtue of the Respondent's own initiative and some arose in response to questions that I posed. For the purposes of reflecting those submissions in this decision, I will not seek to distinguish one from the other but simply record them as additional submissions. Some of the oral submissions covered the same issues as the written submissions and to the extent that those oral submissions reinforce rather than expand upon the written submissions. I will not note them in what follows. I should also note that during my questioning of the Respondent the subject moved beyond the immediate case into broader considerations of how the FWC might deal with non-compliant clauses. I do not propose to canvass those discussions in this decision.

• [34] As to additional submissions with respect to the Yallourn and Primo decisions, the Respondent addressed the finding in Primo at paragraphs 64 and 65 of that decision. The Respondent submitted that to the extent that this decision stood for the proposition that if an agreement dispute procedure provided that a union could not initiate a dispute then the agreement could not have been approved and therefore such a construction of the dispute procedure must be rejected, then it was wrongly decided and indeed not consistent with Yallourn. The Respondent submitted that Yallourn was decided on the basis of the dispute procedure in that agreement, which was ambiguous, and thus a construction which favoured the industrial reality and legislative intent was preferred. It was not a proposition that any dispute procedure in an agreement that did not allow a union to initiate a dispute must be re-constructed, or otherwise changed by implication, so that it did allow the union such right and as such complied with section 186(6) of the Act.

• [35] In its submissions, the Respondent did not concede that the DRP did not comply with section 186(6) and contended that to the extent that Yallourn is proposition for the notion that all dispute procedures must allow a union covered by the agreement to initiate a dispute, it was wrongly decided. It further submitted that even if it were wrong on both counts, then the remedy for the deficiency in the DRP was not to re-interpret the plain meaning of the words of the DRP but rather that the remedy lay elsewhere and beyond the scope of the matter currently before the FWC.

• [36] The Respondent noted, in support of its contention that the dispute was raised by the Applicant in its own right rather than on behalf of a pilot, that the letters of dispute appended to the originating applications made no mention of a pilot. Further, while the Respondent accepted the finding in ARTBIU v Asciano Services Pty Ltd 2017 FWCFB 1702 at [15] to the effect that a union, in representing a member or members need not in the first instance identify those members, it submitted that the issue in this case was that the Applicant had not established that it was in fact representing any members. To further buttress this line of argument, the Respondent referred me to the witness evidence of Mr Hartley, specifically as follows:

"On or about 12 October 2023, I received three letters signed by Mr Stephens on behalf of AFAP, each with the heading 'Notification of Dispute'. One letter was in relation to the Broome Agreement, the second was in relation to the PHI International Australia Pilbara Helicopter Pilots Enterprise Agreement 2022 (Pilbara Agreement), and the third was in relation to the PHI International Australia Gascoyne Helicopter Pilots Enterprise Agreement 2022 (Gascoyne Agreement).

I was surprised by the letters, as I had not been notified by or on behalf of any Pilot of a dispute regarding their annual leave, I was not aware of any dispute being notified to any other manager within PHI by or on behalf of any Pilot, and no Pilots were identified in the letters as raising a dispute.

At the time I received the letter from Mr Stephens on behalf of AFAP regarding the notification of a dispute under the Pilbara Agreement, no employees of PHI had been covered by that agreement since 1 March 2023.

In respect of Pilots covered by either the Gascoyne Agreement or the Broome Agreement I was not aware of any Pilots raising a dispute regarding their annual leave.

I have since made enquiries with relevant HR and management staff to review their email accounts and other business records to ascertain whether any communication was received by or on behalf of any Pilot notifying PHI of a dispute under either the Gascoyne Agreement or the Broome Agreement, or if they have had any meetings with any Pilot regarding a dispute about their annual leave prior to 12 October 2023. I have been informed and I believe that no communication, other than that received from Mr Pelegry concerning the dispute that was resolved in early in October 2023, has been received by or on behalf of any Pilot seeking to initiate or advise of a dispute concerning their annual leave, nor has any meeting been held with a Pilot or an identified representative to discuss any concern regarding their annual leave.

Based on my knowledge and my enquiries, no Pilot has, whether by themselves or by the AFAP acting as their identified representative, sought to initiate the dispute resolution procedure under clause 20 of the Broome Agreement, the Gascoyne Agreement or the Pilbara Agreement, prior to receiving the three letters from Mr Stephens on behalf of AFAP."[7]

• [37] The Respondent also drew my attention to the supplementary witness statement of Mr Stephens which the Respondent took to be claiming some connection between the disputes mentioned therein and the disputes presently before the FWC. The Respondent directed my attention to the reply witness statement of Mr Hartley, wherein he rejected that connection and the Respondent also noted that Mr Hartley had confirmed this evidence under cross-examination. The Respondent noted that the letters of dispute in Mr Stephens' supplementary statement were dated in March and April 2023, some many months prior to the current disputes being raised, and that the Respondent had provided responses to those letters.

• [38] Further, although the Respondent had made it clear that it did not accept that a dispute was formally in place at that time due to the lack of initiation by a pilot, it nevertheless engaged in discussions with the Applicant on the issues in dispute albeit that such discussions were, in the Respondent's view, superseded by the commencement of bargaining for a new enterprise agreement. The Respondent also drew my attention to an email from the PHI Broome Pilot Committee, which was in evidence. In this email, the Committee requests that the Applicant discontinue its dispute over annual leave until after the enterprise agreement negotiations were complete and stated that none of the members of the Committee wished to have their names associated with the dispute. In the Respondent's submission, this was further evidence that no pilot was actually in dispute with the Respondent over the annual leave issue.

• [39] The Respondent also addressed the contentions of the Applicant regarding the survey conducted by the Applicant. The Respondent submitted that the survey was not specific regarding the nature of discussions or disputes that gave rise to the survey and as such the conclusions that could be drawn from the answers were limited and did not extend to the details of the current disputes. The Respondent also submitted that the survey result was not capable of properly defining the instructions from members with respect to the actions the Applicant ought take with respect to the dispute and as such did not empower the Applicant to begin a dispute in its representative role.

• [40] The Respondent further submitted that to invoke the jurisdiction of the FWC, which arises in clause 20.2.2, a party needed to first comply with the requirements of clause 20.2.1 and that the Applicant had failed to so comply.

• [41] The Respondent conceded that the Applicant, based on the findings in Asciano, does not need in the first instance to identify the member or members who are the subject of a dispute, and also conceded that the initial notification of a dispute could be made by the Applicant, albeit in its role as representative of a pilot and not in its own right. The Respondent also accepted that the Applicant was not required to remain a passive observer in that it had to wait for a member to raise a concern but rather could approach a member or members with a concern to see if that concern was shared, and further, to see if the member or members wished it to pursue a dispute. However, the Respondent qualified this by saying that this would require a pilot or pilots to actually confirm that they shared the concern and wanted action taken and continued to maintain that the evidence suggested that no pilot had done so.

• [42] The Applicant also made oral submissions at hearing and I will deal with those in the same manner as outlined above in paragraph 25. The Applicant submitted that the DRP did contain some ambiguity, in that the use of "Pilot" in clause 20.1.3 is, while clear on its face, somewhat misleading as it may be seen as merely an example and the clause is as such silent on whether another party may initiate a dispute. The Applicant suggested that this silence ought to be considered in the light of the lack of the word "only" - that is to say the clause does not say "only a Pilot may initiate". In other words, the rights of the other parties, being the Applicant and the Respondent, are unclear. In the Applicant's submissions, and consistent with the principles in Yallourn, it could be construed that the clause allows any party to initiate a dispute but uses the Pilot as an example.

• [43] Having proposed this potential ambiguity, the Applicant drew further upon what it submitted were the principles in Yallourn to propose that the DRP must be read so as to allow a union to initiate a dispute and in doing so the FWC would be ensuring that the DRP was consistent with the Act. Further, and logically, in rejecting the construction contended for by the Respondent, the FWC would be rejecting a construction that left the DRP non-compliant with the Act.

• [44] The Applicant also addressed the issue of non-compliance with the provisions of the DRP. It submitted that the evidence of Mr Hartley with respect to there being no connection between the correspondence set out in Mr Stephens' witness statement and the current disputes ought to be disregarded as it was not borne out by the facts. The Applicant submits that the Respondent had been aware of the subject matter of the dispute for some time and that there was no "re-set" of the matter created by the notification dated 12 October 2023.

• [45] The Applicant referred me to the decision of Flick J in Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association (No 2) [2020] FCA 951 in support of the proposition that "dispute" should be given its ordinary meaning and as such it could be taken to mean the existence of opposing views where such opposition was known to the parties involved. Further, a dispute may continue for some time and evolve even through changes of the persons involved. It does not re-set each time it is raised.

• [46] The Applicant also raised the implications of the failure of the parties to meet during the seven day period after the notification of the dispute on 12 October 2023, noting that such a meeting is required under the DRP. The Applicant proposed that the failure to meet was due to the failure of the Respondent and that this had been somewhat conceded by Mr Hartley. The Applicant referred me to the finding in DP World (Fremantle) Ltd v CFMMEU (DP World) [2019] FWCFB 3965 as support for the proposition that the Respondent's failure to participate in the DRP as per its terms ought lead the FWC to take the view that its jurisdiction is enlivened even though on its face, the required process has not been followed.

• [47] Finally, the Applicant submitted that the Respondent's critique of its survey of members was unreasonable given the industrial circumstances in which the survey was conducted. As the Applicant put it, the survey was not designed to demonstrate to the FWC that the Applicant had been formally appointed by members but was rather to confirm that the members were aware of what was going on and supported the Applicant's actions.

• [48] In closing reply submissions, the Respondent raised a number of issues with the Applicant's submissions. In the first instance, it took issue with the submission that clause 21.1.3 was ambiguous and submitted instead that it was clear in its wording and intent that the only proper construction of that clause is that only a pilot can initiate a dispute. Further, if all parties could initiate a dispute then clause 20.1.3 is unnecessary and has no work to do.

• [49] In terms of the correspondence in April and May 2023, the Respondent submits that there is no evidence that the matters mentioned therein are the same matters as raised in the dispute notices on 12 October 2023, nor is there any indication that the Applicant is acting in a representative role. The Respondent also took issue with the submission that it was to blame for the lack of discussion in the seven days post 12 October 2023 and submitted that Mr Hartley had refuted this proposition. Notwithstanding this, the Respondent submitted that compliance with clause 20.2.1 was mandatory irrespective of the where the blame lay. In any case, the Respondent did not accept that a dispute was on foot and thus it did not need to engage in discussions.

• [50] The Respondent then turned to the issue of the survey, which it said did not establish that the particular dispute notified was in fact the issue in dispute. Further to this, the Respondent submitted that clause 20.1.4 provides that with respect to representation, it must be with respect to a particular dispute and not representation more generally. The Respondent further submitted that clause 20.1.4 makes it clear that a representative must be a nominated representative, and that there was no evidence that the Applicant had been nominated by any pilot or pilots.

• [51] In this matter, there have been a number of possible interpretations and available conclusions submitted by the parties and it is not my intention to address each and every one of them in these reasons. I will comment on those that I feel require commentary, and then provide my decision and the reason for that decision. In the first instance, I want to address the issues arising from Yallourn and Primo.

• [52] It appears to me that the decision of the Full Court of the Federal Court in Yallourn makes it clear that where a union is covered by an agreement, it must have the right to initiate disputes in its own right. In making this assessment, I am particularly mindful of the findings in paragraphs 66 and 67 of the decision, which are set out at paragraph 27 above. The question then arises with respect to the DRP in the agreements and whether it permits a union to initiate a dispute in its own right. On this matter, the parties are implacably opposed.

• [53] The Applicant notes that the particular provision, being clause 20.1.3, does not expressly state that only a pilot can initiate a dispute, and contends the clause should be read as permitting a pilot to initiate a dispute but not preventing other parties who are not named from also initiating a dispute. The Respondent contends that the clause is unambiguous and if the words are given their clear meaning the clause is harmonious with the remainder of clause 20. As such, given the principles of interpretation and also the principles regarding implication, the FWC should accept that the DRP has been drafted to allow only a pilot to initiate a dispute and not seek to disturb the clear words of the clause.

• [54] In seeking to determine which of these propositions ought be accepted, it appears to me that a number of observations ought be made regarding the clause. Firstly, clause 20 as a whole is poorly drafted and lacks clarity. Secondly, if the Respondent is correct regarding the correct interpretation, then the Respondent itself, which is not merely covered by the Agreement but is a party to it, cannot initiate a dispute. The Respondent concedes that this is the case but contends that this is a permissible outcome of bargaining and a permissible structure for a disputes clause. I put it to the Respondent that if that were true, then logically the parties could agree that only the employer could initiate a dispute and structure a disputes clause accordingly. The Respondent submitted that this was indeed the case. I cannot agree with this proposition, but it is not necessary to resolve that issue to decide this matter. The third observation I would make is that if it is the case that the Applicant and the Respondent have through their bargaining constructed a disputes clause that neither of them can access, it would be surprising if they did so knowingly, but again this is an issue that does not require resolution in this matter.

• [55] I find that if indeed the DRP as set out in clause 20 does not permit the Applicant to initiate a dispute in its own right then it falls foul of the requirements of section 186(6) of the Act. However, if this is the case, notwithstanding the finding in Primo I am not persuaded that the clause should be re-interpreted such that it does permit the Applicant to initiate a dispute. I am persuaded that the views of the Respondent are correct in that if indeed the clause does not meet the requirements of the Act - noting that the Respondent does not concede this - then the remedy lies elsewhere to correct the clause and that remedy is beyond the scope of the matter presently before the FWC. However, I find that I do not need to resolve the matter of whether the DRP allows the Applicant to initiate a dispute in its own name, as for the reasons that follow, I find that the Applicant is acting in a representative capacity with respect to the disputes.

• [56] The Respondent submits that the Applicant is not acting in a representative capacity because there is no evidence that a pilot has a dispute with the Respondent or that a pilot has sought to have the Applicant represent it in a dispute over this matter. The Respondent submitted that the survey conducted by the Applicant is too vague to rise to the standard of a pilot specifically authorising the Applicant to be his or her representative and to pursue the specific dispute with the Respondent. I do not agree with this proposition. As submitted by the Applicant, its survey was not constructed to meet a standard of proof that might be required in a court or tribunal. It was simply to ensure that the Applicant was acting in accordance with the wishes of its membership.

• [57] I find that the question in the survey asked regarding annual leave, being about whether the pilot wished to take annual leave at times of their own choosing, is the issue that the Applicant is pursuing with the Respondent. The question regarding taking the matter to the FWC I find to be clearly asking the members if they wanted the Applicant to pursue the matter. It may be that the Applicant, suspecting a negative response from the Respondent has foreshadowed that such pursuit would be to the FWC. Nevertheless, the members have asked that the Applicant take such a step which can be reasonably concluded to be the members asking the Applicant to pursue the matter with the Respondent.

• [58] I would add that to suggest that a union needs to go through a pedantic, structured process to ascertain the will of its members before it can raise a dispute on their behalf is simply not consistent with industrial practice or reality. Further, and consistent with the findings of the FWC including in Asciano and James Cook University v National Tertiary Education Industry Union (James Cook) [2018] FWCFB 5601 the union does not need in the first instance to advise the employer of the names of the union members on whose behalf it acts. I should at this point note one caveat. In making this finding, I am making it with respect to the members covered by the Broome Agreement and the Gascoyne Agreement, as there do not appear to be members covered by the PHI International Pilbara Helicopter Pilots Enterprise Agreement 2022 who have completed the survey and thus made their wishes clear.

• [59] I will also comment on the submission made by the Respondent regarding the views expressed by the Broome Pilot Committee. While the Respondent only relied on this evidence in part, it is appropriate that I deal with it. The Broome Pilot Committee may have some standing internally within the Respondent's operations. However, it cannot purport to be reflective of the views of each and every employee of the Respondent, and it certainly cannot override or instruct the Applicant, which is a registered organisation, where members of the Applicant have asked it to represent them on a matter. I now turn to the nature of the dispute.

• [60] Notwithstanding the submissions of the Respondent, I find that this dispute is a dispute which arose some time ago and has been raised by the Applicant with the Respondent on a number of occasions, as shown by the evidence submitted of correspondence going back to April 2023. The Respondent submitted that the present matters before the FWC are not related to the matters in the previous correspondence. Further, Mr Hartley gave evidence as follows:

"I have read the supplementary witness statement of David Stephens and the attached materials marked "DS1" filed on 9 February 2024. None of the correspondence in DS1 has any relationship to, or connection with, any of the three disputes before the Commission".[8]

• [61] This assertion by Mr Hartley is difficult to accept. The material attached to Mr Stephens' supplementary witness statement includes a letter sent to the Respondent on 9 March 2023 wherein the details of a dispute regarding annual leave are set out in meticulous detail, including references to the findings of the Full Bench of the FWC regarding the way the Respondent treats annual leave. Those very same details, albeit in slightly different order, are set out in the dispute notices of 12 October 2023. In other words, it is the exact same issue being raised in both instances. There is no evidence to suggest that the dispute raised in the letter of 9 March 2023 was ever resolved and the subsequent dispute notices in October 2023, which deal with the exact same matter, seem to me to confirm that it was not resolved. For Mr Hartley to claim that there is no relationship between the two disputes on the basis of the material in Mr Stephens' statement suggests he is, regarded in the best possible light, gravely mistaken. While it might be true, as the Respondent submitted, that between March and October an intervening event, being negotiations for a new enterprise Agreement, took place, it did not submit that this event resolved the dispute notified on 9 March 2023, nor would I have accepted that it did. If it were necessary for me to find that the notices of 12 October 2023 were simply a continuation of the earlier dispute, I would do so. However, I find again that I do not need to resolve that issue.

• [62] I find that the Applicant has, via the surveys it conducted and the results of which were in evidence, satisfied itself and the FWC that certain of its members want changes made to the way annual leave is handled by the Respondent, and they want the Applicant to pursue the matter. Armed with this, the Applicant has notified the Respondent of a dispute in its role as representative as it is entitled to do based on the wording of the DRP clause 20.1.4 which provides that the pilot may be represented at any stage of the process. It has not named the pilots, but neither does it need to at this early stage given the case precedent referred to above.

• [63] As was conceded by Mr Hartley for the Respondent, at this stage the Respondent should have advised the Applicant of the identity of the person in its management team who would be responsible for handling the dispute but it failed to do so. It should also, as per clause 20.2.1, have met and conferred within seven days but it failed to do so. The Respondent thus having failed to comply with the clause, the Applicant has moved to the next stage of the disputes procedure and lodged the matter with the FWC. It is appropriate that I comment on some of the issues that arise with respect to this.

• [64] In the first instance, the Applicant submitted that the Respondent should take the blame for these failures. The Respondent submitted that it did not accept this characterisation and claimed that Mr Hartley had rebutted this suggestion in his evidence. Mr Hartley in fact did no such thing. The Applicant put to Mr Hartley that the only reason the parties did not meet and confer was that the Respondent had "sat on its hands". Mr Hartley's response was that he would not know.

• [65] A second issue which arises is why the Respondent did not follow the disputes procedure. When I raised this issue, the Respondent submitted that it did not regard the dispute notifications as indicating that there was a genuine dispute. I find that this is not an acceptable response. The Applicant had outlined in great detail the issue in dispute and so even if the Respondent wants to maintain that it was uncertain about the nature of the dispute prior to 12 October 2023, it cannot possibly claim that it was not made fully aware by way of the notices of dispute dated 12 October 2023. Having been made aware, the Respondent cannot credibly claim that there was no issue in dispute, as it must have been aware that its practice regarding annual leave was not consistent with the practice contended for by the Applicant. As such, there was a clear difference of opinion. The issue then perhaps turns to the question of was a pilot in dispute, but as I have outlined above, the Applicant was asserting a dispute existed and it did not have to advise the Respondent of the identity of the members involved. I do not accept that the Respondent can simply assume there is no pilot involved and then subsequently totally ignore the issue.

• [66] I now turn to the failure of the Respondent to follow the disputes process and the implications of that failure. In doing so I note that the Applicant made it clear on 12 October 2023 that it was available for discussions but the Respondent chose to make no response whatsoever. The Respondent submitted in essence that no matter the reason for the failure of the parties to follow step 20.2.1, there was still a failure and so the FWC did not have jurisdiction. I do not accept this view. As the Applicant stated with reference to DP World, it is not appropriate for one party to frustrate the disputes process by refusing to participate and then claiming that the process has not been followed. To allow such an outcome would create the potential for industrial havoc whereby either party can effectively bog down or suspend a dispute process by virtue of its own deliberate inaction.

• [67] This leads me to a further consideration, which is related to practicality and common sense. It may have been open to the Respondent to argue that the terms of clause 20.2.1 required a meeting with the actual pilot or pilots in dispute, and at the shop floor level. It may also have been open to the Respondent to argue that if the FWC decided that there was a dispute it should require the parties to confer pursuant to 20.2.1 before the FWC does anything further. I would reject both of those arguments. Firstly, and again relying on Asciano and James Cook, the union was not required to divulge the identity of the members involved. This is an important protection for union members in the first instance where they may have concerns regarding the potential reaction of their employer and so I would not accept that the pilot would have to be present at the initial discussion.

• [68] Secondly, on the issue of a shop floor meeting I am persuaded by the findings of Colvin J in Maersk v CFMMEU No 2 [2020] FCA 1694 at [86] as follows:

"The terms of a procedure for resolving disputes should not themselves be construed in a manner that turns them into an instrument for generating disputes as to whether the procedure itself has been followed. Such provisions must be construed having regard to their evident purpose as providing a mechanism by which to encourage discussion and resolution. They should be interpreted 'practically and with an eye to common sense' having regard to the context in which they will be applied so that they can be implemented 'in a clear way on a day‑to‑day basis at work sites'".

As such, even if I again accept that the Respondent had no knowledge of the issue prior to 12 October 2023, after that date it was very much aware that the Applicant was pursuing a dispute about a matter that was subject to a ruling of a Full Bench of the FWC. Clearly, the Respondent does not wish to adopt the position for which the Applicant advocates and has spent considerable time, effort and resources in combatting the Applicant over the matter. As such, I cannot accept the suggestion that this issue could be resolved at the shop floor level, or that such a discussion was the most appropriate next step.

• [69] In summary, I find that the Applicant has, acting in a representative capacity of members covered by the Broome Agreement and the Gascoyne Agreement, notified the Respondent of a dispute, being a dispute certain of its members wish the Applicant to pursue. The Respondent has by its own inaction ensured that the provisions of clause 20.2.1 were not complied with. In such circumstances, it is reasonable that the Applicant then refer the matter to the FWC, which it has done. I therefore find that the FWC has jurisdiction to deal with the matter with respect to the Broome and Gascoyne Agreements and I will issue directions to the parties regarding the next steps.

J Marks for the Australian Federation of Air Pilots.

I Neil of Senior Counsel with J Flinn of Counsel for the Respondent.

[1] Respondent Initial Submissions, at paragraph 3.

[2] Applicant Initial Submissions, at paragraph 10.

[3] See Applicant Initial Submissions at paragraphs 13-19.

[4] See Respondent Reply Submissions at paragraphs 8-12.

[5] See Respondent Reply Submissions at paragraphs 14-19.

[6] Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (Yallourn) [2018] FCAFC 146, at [66-67].

[7] Witness statement of Tim Hartley dated 5 February 2024, at paragraphs 15-16.

[8] Mr Tim Hartley Reply Witness Statement 13 February 2024, at paragraph 2.

Printed by authority of the Commonwealth Government Printer