General
80 Both dispute resolution procedures in the enterprise agreements specify that there is to be a meeting involving an employee and his or her supervisor or manager, which I will refer to as the stage one meeting, followed by (assuming the matter or dispute is not resolved) further discussions or a reference to more senior levels of management, which I will refer to as the stage two meeting, and then, if the matter remains unresolved, the matter or dispute may be referred to the FWC. In those circumstances, the FWC would have jurisdiction under s 739 of the FW Act to "deal with" the dispute.
81 The following matters are not in dispute in the cross-appeal by Qantas and Jetstar.
82 First, it is not in dispute that one employee may fulfil the requirements of a stage one and stage two meeting sufficient to have enabled the appellant to bring an application in the FWC on behalf of its members.
83 Secondly, it is not in dispute that both pre-conditions in the dispute resolution procedures (i.e., the stage one and stage two meetings) must be met before a "dispute" or "matter" is referred to the FWC. The primary judge held that substantial compliance with these provisions was sufficient (Qantas (No 2) at [53] and [56]). His Honour held that the dispute resolution procedure in each enterprise agreement presents a staged process of dispute resolution.
84 Thirdly, it is not in dispute that the requirements for a stage two meeting had been met in this case. The challenge by Qantas and Jetstar by the cross-appeal is to his Honour's conclusion that the requirements for a stage one meeting had been met.
85 The limited nature of the issues raised by the cross-appeal means that it is not necessary to go beyond the evidence relied on by his Honour to find that there had been a stage one meeting within the dispute resolution procedure in each enterprise agreement.
86 The evidence before his Honour which formed the basis of his conclusion that there had been a stage one meeting under the Qantas Agreement was that of Mr Mark Gant, who was the Duty Maintenance Manager employed by Qantas at Sydney Airport. Since 2001, Mr Gant has also been an Aircraft Engineer. The primary judge referred to the following evidence given by Mr Gant in his affidavit:
16. Between 18 March 2020 and 20 March 2020, I discussed the proposed stand downs with other ALAEA members, including LAMEs I directly supervise on a day to day basis. Several, including for example Kevin Baldacchino, approached me to initiate these discussions. Mr Baldacchino, as an example, questioned if Qantas could stand us down, and indicated that he did not accept this. I was unable to resolve this question to his satisfaction.
17. Many indicated that like me, they did not agree with the stand downs, and wanted our association to challenge them however we could, or as a fallback try and negotiate a more equitable system. I obviously could not resolve the dispute for them.
18. The LAMEs who spoke to me were focused on the stand downs at large, not particular legal arguments. As a general rule, when the members want the ALAEA to dispute a matter for them, they are concerned with the outcome not the process - as one gentleman said to me "they don't care about the birth, they want to see the baby".
19. I personally did not agree, and do not agree, that Qantas could or should stand me down without pay.
The primary judge noted that Qantas objected to these paragraphs, but that they were admitted into evidence, subject to considerations of weight, "given the absence of any specification in admissible form as to the content of what was said" (Qantas (No 2) at [38]).
87 The evidence before his Honour which formed the basis of his conclusion that there had been a stage one meeting under the Jetstar Agreement was evidence of a conversation between Mr Adam Teat and Mr Robert Toovey on 19 March 2020 and of a conversation between Mr Gregory Hutchinson and Mr Toovey on the same date.
88 Mr Teat was Mr Toovey's Duty Operations Manager and Mr Toovey was an Aircraft Engineer employed by Jetstar. Mr Hutchison was Mr Toovey's Base Maintenance Manager. He occupied a more senior managerial position at Jetstar than Mr Teat.
89 With respect to the Qantas Agreement, the primary judge held that the discussions deposed to by Mr Gant were sufficient compliance with the requirement for a stage one meeting. His Honour said (Qantas (No 2) at [75]):
The conversations recounted by Mr Gant between 18 and 20 March 2020 are, however, sufficient compliance with cl 6.1.1. Mr Gant was the "supervisor" of the employees with whom those conversations were held, including Mr Baldacchino. Notwithstanding the form in which those conversations were expressed in Mr Gant's affidavit and the objection taken to this part of Mr Gant's affidavit, it is concluded, sufficient "weight" can be given to that part of the evidence to find, on the balance of probabilities, that:
• there were discussions about the proposed stand downs;
• in addition to Mr Baldacchino, there were a number of other employees with whom Mr Gant had these discussions;
• whatever else was discussed, the employees were questioning if Qantas could stand them down;
• the employees wanted to challenge the actions proposed by Qantas; and
• there was a "dispute" which Mr Gant could not "resolve".
That is sufficient, it is respectfully concluded, to satisfy the requirements of cl 6.1.1 of the Qantas Agreement.
90 With respect to the Jetstar Agreement, there was a conflict between the evidence of Mr Toovey on the one hand, and the evidence of Messrs Teat and Hutchinson on the other. The primary judge resolved the conflict in favour of the evidence given by Messrs Teat and Hutchinson.
91 The evidence Mr Toovey gave of his conversation with Mr Teat was as follows:
[Mr Toovey]: "Adam regarding the stands downs and the fact that there is no work booked in for April, we don't agree with them. Why can't we cycle some aircraft through the hangar to acquit any outstanding work? We can also bring forward the service bulletins so there is no need for them to be done during the C-Checks?"
Mr Teat: "Bob you need to bring this up with senior management as it is above my pay grade."
92 The primary judge found that Mr Toovey did not say during this conversation words to the effect of, "we don't agree with them".
93 The evidence Mr Toovey gave of his conversation with Mr Hutchinson was as follows:
[Mr Toovey]: "Greg, about the stand downs, we don't agree with them, there's work that can be done. Why can't we bring the Non-Mandatory service bulletins forward and then they don't have to be done during C Checks? This will get the aircraft back into service early making us look good."
Mr Hutchinson: "The Senior AMO makes that decision along with planning's advice. You'll have to take it up with senior management, it's out of my hands."
94 Again, the primary judge found that Mr Toovey did not say in this conversation words to the effect of, "we don't agree with them".
95 The primary judge did find that Mr Toovey made it clear to Mr Teat and Mr Hutchinson during his conversations with them that he was expressing a view or opinion diametrically opposed to that being advanced by Jetstar and that neither of them could have been left in any doubt that Mr Toovey "was maintaining that there remained useful work which could be performed by LAMEs" (Qantas (No 2) at [45]).
96 The primary judge held that the conversations between Mr Toovey and Mr Teat and then between Mr Toovey and Mr Hutchinson were sufficient compliance with the requirement for a stage one meeting under the Jetstar Agreement. His Honour said (Qantas (No 2) at [85]):
But the finding that Mr Toovey did not say to either Mr Teat or Mr Hutchinson that he did not "agree" with the stand downs does not preclude a conclusion that cl 20.1 of the Jetstar Agreement has been satisfied. For the purposes of cl 20.1, it is sufficient for it to be found that there be a discussion during which opposing views were being expressed; the fact that one or other of those persons participating in the discussion did not use such words as "I agree" or "I don't agree" does not of itself resolve the question as to whether the was a "dispute" which was "discussed". It is sufficient compliance with cl 20.1 for Mr Teat (or Mr Hutchinson) to be left in no doubt that Mr Toovey was expressing an opinion contrary to that being advanced by Jetstar. Compliance with that provision is a matter of substance not form. Compliance with cl 20.1 cannot be stripped of its characterisation as a "discussion" about a "dispute" which centred upon "opposing views" by a personal characterisation of the conversation as one during which Mr Toovey was simply "asking questions". It is sufficient, as Mr Teat accepted, for Mr Toovey to be "questioning that decision". Similarly, it matters not if Mr Hutchinson was "not sure if [Mr Toovey] was disagreeing" as opposed to Mr Toovey "making a point that he felt that other work could be conducted".
97 The primary judge started his analysis of the clauses dealing with stage one and stage two meetings by saying that the clauses must be construed with a degree of flexibility consistent with the industrial context in which the two clauses were drafted.
98 The primary judge said that the central concept in the relevant clauses was the concept of a "dispute" and he referred to the definition of that word in the New Shorter Oxford English Dictionary. He said that the word should be given its ordinary English meaning in the relevant clauses and the essence of that meaning was an exchange of "opposing views" or positions and the necessity for there to be an exchange of positions "for and against" a particular result.
99 The primary judge said that the provisions of the dispute resolution procedures would need to be applied to a wide range of circumstances and that factor was relevant in the construction of the provisions. For example, a dispute might involve a discrete personal matter or it might involve a matter affecting a large number of employees. There is no reason to confine the provisions to the former or to require, in the case of a dispute involving a large number of employees, that each individual employee meet with his or her supervisor. For similar reasons, words such as "meeting" and "discussion" should be broadly construed to include meetings which were not formally convened meetings or formal discussions.
100 In response to a submission by Qantas and Jetstar that by reason of the language of the provisions and the potential for liability to civil penalties for non-compliance with the provisions, there had to be a minimum content given to the provisions, including a requirement for a proper articulation of the dispute and at least some understanding that those participating knew that they were in a "dispute meeting", the primary judge accepted that the provisions had a minimum content. However, he defined that minimum content as that "there needed to be the raising by an employee or a group of employees of an 'opposing view' to that of their employer and that view had to be raised at a meeting (however flexibly that term is to be construed) at which it was known or could reasonably be inferred that each of the 'opposing' sides knew that there was a dispute in need of resolution" (Qantas (No 2) at [70]). The primary judge said that it was not necessary for those participating in the meeting or discussion to know that they were participating in a meeting which formed part of a dispute resolution procedure.
101 Counsel for Qantas and Jetstar started his submissions with the Jetstar Agreement. He pointed out that cl 20 used both mandatory and discretionary language and asked the Court to conclude that the draftsman was careful to distinguish between the two. Clause 20.1 was expressed in mandatory terms. The primary judge may have concluded substantial compliance with cll 20.1 and 20.2 was sufficient, but that was relevant to other arguments before the primary judge, arguments which are not raised on the cross-appeal. The principal argument raised on the cross-appeal is whether there had been a stage one meeting.
102 Counsel identified other features of cl 20 said by Jetstar to be significant and, in particular, the fact that a failure to comply with the mandatory obligations in the clause could result in the imposition of pecuniary penalties (s 50 of the FW Act) and the fact that the engagement of cl 20.4 depended on the procedures in cll 20.1 to 20.3 being followed.
103 Jetstar submitted that the primary judge's error lay in not construing cl 20.1 as containing a requirement that the parties knew, or on the facts it should be inferred they knew, that they were engaging in a dispute resolution procedure. The consequences for parties of a breach of the provisions could be very serious. A party not appreciating that there had been a stage one meeting could be liable to a civil penalty by insisting on a course other than the preservation of the status quo required by cl 20.4 or an employee might mistakenly believe cl 20.4 had been engaged and prejudice his or her position by failing to follow the employer's direction.
104 Jetstar submitted that that error undermined his Honour's reasoning because he did not ask himself whether both parties knew, or on the facts it should be inferred that they knew, that they were engaging in a dispute resolution process. It submitted that such evidence as there was, suggested that that conclusion ought not to be drawn. For example, the primary judge set out evidence from Mr Teat that he did not consider his conversation with Mr Toovey to be part of a dispute resolution procedure; otherwise, he would have escalated the dispute to the next level. Mr Teat said in cross-examination:
And Mr Toovey in the conversation you had with him on the 19th was questioning that decision, wasn't he, whether or not there was work that could be done?---Yes, yes.
Yes. He was making suggestions about work that could have been brought forward. Do you agree with that?---Yes, yes.
At this point, Jetstar was saying there is no work to be done and Mr Toovey was saying to you I think there is work to be done. That's a fair summary?---Yes, yes.
And if Mr Toovey was right, if there was work for LAMEs to do, they wouldn't need to be stood down. That's right, isn't it?---If there was work to be done? Yes.
And that was the point Mr Toovey was making. That he thought there was work to be done so the stand downs didn't need to happen. Do you agree with that?---Yes, yes.
So the point was that he didn't agree with what Jetstar was doing, at least in part. That's right, isn't it?---The court was asking - sorry, Mr Toovey was asking questions around the maintenance.
Yes. And the questions were, as we've just discussed, directed at challenging the conclusion that there was no useful work for you. Do you agree with that?---The conversation I had with Mr Toovey, he was asking a question, so - - -
It was - and you weren't - the matters he was proposing were totally outside of your authority, weren't there?---Yes, I - yes. I spoke to - when I spoke to Mr Toovey I told him that we - - -
Mr Teat, this is quite difficult with the video. If you could just confine yourself to the question. If I need an explanation, I will ask you or Mr Parry will ask you later. So the matters Mr Toovey were discussing, they were decisions made by senior management, weren't they?---Correct.
And you told him that. You referred him to senior management?---Correct.
You told him something like, "This is above my paygrade"?---Incorrect.
Okay. And it is the case that Mr Toovey did not say anything along the lines of, "Hello, Adam. I am disputing the standdowns under clause 20 of the agreement," did he?---No.
But if he had, your response would have been the same. You would have referred him to senior management?---I would have asked Mr Toovey to send me an email in writing with his dispute.
Which you then would have referred to senior management?---Correct.
Yes. Because you have absolutely no ability to resolve any dispute, big or small, about the standdowns at that point, do you?---No.
105 Jetstar submitted that even on the test formulated by the primary judge, that is to say, that those participating in the meeting knew first, that there were opposing views and secondly, that they knew those opposing views needed to be resolved, the appellant's case failed because the primary judge did not, in the paragraph in which he set out his findings, make a finding that the second limb was satisfied.
106 Finally, Jetstar submitted that the primary judge erred in concluding that the conversation between Mr Hutchinson and Mr Toovey was a stage one meeting because Mr Hutchinson was not Mr Toovey's local Line Maintenance Manager or Duty Operations Manager.
107 The arguments advanced by Qantas were essentially the same save that there is no status quo provision in the Qantas Agreement. Qantas also submitted that the meeting between Mr Gant and Mr Baldacchino and others could never be a stage one meeting because Mr Gant was not involved in the meeting as a supervisor. Not only was he an Aircraft Engineer who did not agree with the stand downs, but he appeared at the meetings on 18 March 2020 and 20 March 2020 as a representative of the appellant (Qantas (No 2) at [24] and [31]).
108 The cross-respondent in essence relied on the reasons of the primary judge. There was a suggestion by the cross-respondent that this dispute was a collective dispute in the sense that it was clear that the cross-respondent and not merely an individual employee disputed the stand downs and that, to use counsel for the cross-respondent's words, an interpretation of the clauses in the case of "collective disputes" that means that there can only be a reference to the FWC "by triggering of an individual employee at the first step … seems an unlikely interpretation". That suggestion must be rejected. The cross-respondent did not file a Notice of contention in the cross-appeal and the suggestion is inconsistent with the reasoning of the primary judge to the effect that each step is a pre-condition which must be satisfied before a "dispute" or "matter" is referred to the FWC.
109 The cross-respondent referred on a number of occasions in its written and oral submissions to the fact that his Honour had held that substantial compliance with, inter alia, cl 6.1 of the Qantas Agreement and cl 20.1 of the Jetstar Agreement was sufficient having regard to the terms of those clauses and that strict compliance was not required. His Honour made observations to that effect in the course of considering whether those clauses, among others, "imposed mandatory pre-requisites or pre-conditions which needed to be satisfied prior to the exercise of any power to refer a 'matter' as a 'dispute' to the Commission" (Qantas (No 2) at [50]). As I have said, his Honour concluded that the clauses imposed pre-conditions which must be satisfied before a "dispute" or "matter" can be referred to the FWC (see the discussion in Qantas (No 2) at [50]-[60]).
110 Having made these observations, his Honour turned to consider the meaning and application of the clauses to the facts. Having determined the meaning of the clauses, I do not understand his Honour to analyse the application of the clauses to the facts by reference to notions of substantial compliance. As I read his Honour's reasons, he determined that there had been compliance with the clauses as he construed them. I think that the cross-respondent ultimately recognised that to be the position because at one point in its written submissions, it said that there had been "strict" compliance with the clauses unless one accepts Qantas' proposition that some kind of formal declaration of being in dispute must precede the shop floor discussion.
111 It is convenient to begin the consideration of the challenge by Qantas and Jetstar to the primary judge's reasoning at the point where his Honour considers and rejects the proposition that those participating in the meeting or discussion needed to know that they were participating in a meeting which formed part of a dispute resolution procedure or, as put in oral submissions before this Court, a step in a dispute resolution process. Counsel for Qantas and Jetstar accepted that this requirement was not wholly subjective; it would be met if the facts were such that a reasonable person would understand that the discussion or meeting was a step in a dispute resolution procedure.
112 I reject the submission by Qantas and Jetstar. No such requirement appears in either cl 6.1 of the Qantas Agreement or cl 20.1 of the Jetstar Agreement. In my respectful opinion, the primary judge correctly identified the matters which must be proved in order to establish that there has been a stage one meeting. First, there must be opposing views. That is the essence of a dispute about a matter or relating to a matter within the terms of the clauses. Secondly, the participants must understand that the dispute is one in need of resolution. On the requirements of the clauses as identified by the primary judge, both parties will be aware that they have opposing views and that there is a dispute in need of resolution and that is sufficient to satisfy the requirements.
113 I turn now to deal with Jetstar's argument that it must succeed on the cross-appeal because the primary judge did not make a finding with respect to the second limb he identified, namely, that the parties recognised that there was a dispute in need of resolution. That would appear to be the case, at least in express terms (see Qantas (No 2) at [85]-[86]). I consider there is an implied finding that the second limb is satisfied on the facts. The evidence accepted by the primary judge is clear. Mr Teat said to Mr Toovey that he would need to bring the matter up "with senior management".
114 I turn to some subsidiary points raised by Qantas and Jetstar.
115 As to the fact that at the relevant time, Mr Gant was not only a supervisor of various Aircraft Engineers, including Mr Baldacchino, but he was also an Aircraft Engineer, a trustee and representative of the appellant and a person who disagreed with the stand downs, I am unable to see why those matters affect his status to be the employee's supervisor for the purposes of cl 6.1 of the Qantas Agreement.
116 It is correct that Mr Hutchinson was not Mr Toovey's local Line Maintenance Manager or Duty Operations Manager and that he occupied a more senior level in the management structure. It is not necessary to consider whether that means the conversation he had with Mr Toovey cannot qualify as a discussion for the purpose of the Jetstar Agreement because that clause was satisfied by reason of the conversation between Mr Teat and Mr Toovey.
117 In my opinion, the cross-appeal must be dismissed.