Minor typographical amendments to paragraphs [27], [85] and [87].

Fair Work Act 2009

s.739 - Dispute resolution

Dispute about a matter arising under the enterprise agreement - application for stay of proceedings - stay granted.

[1] This decision concerns an application by Captain Anthony Lucas for an order to stay proceedings in matter numbers C2023/1371 and C2023/1755 pending the outcome of related proceedings in the Federal Court of Australia.

• [2] On 15 March 2023, Captain Lucas made an application pursuant to s.739 of the Fair Work Act 2009 (FW Act) in respect of a dispute with Qantas Airways Limited[1] (Qantas) (Lucas Application).

• [3] The dispute concerns the allocation of pilots employed as Second Officer under Training (SOT) to aircraft upon completion of their training. In the Application, the Applicant states that the dispute is about whether the allocation to aircraft should be in accordance with seniority or whether clause 19.1.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (Agreement) means Qantas is required to obtain AIPA's consent, so that direct allocation would be valid. Furthermore, the Application states the dispute also relates to the issue of vacancies.[2]

• [4] The Lucas Application followed the discontinuance of a related dispute the previous day.[3]

[5] On 16 March 2023, the Lucas Application was listed for mention and directions and the parties also participated in conciliation. The matter did not resolve and was adjourned until 20 March 2023 to allow the parties to have further discussions with respect to resolving the dispute.

[6] On 17 March 2023, Captain Lucas filed an application pursuant to s.615 of the FW Act, requesting the President of the Commission refer the Lucas Application to a Full Bench of the Commission (Referral Application).

[7] On 20 March 2023, the parties participated in a conference before the Commission. The matter was then adjourned until 29 March 2023 to allow the parties to have further discussions with respect to resolving the dispute.

[8] On 28 March 2023, both parties filed their proposed questions for arbitration in relation to the Lucas Application with my Chambers.

[9] On 29 March 2023, in a conference before the Commission, the parties advised that they have been unable to resolve the dispute. I then proceeded to deal with framing the questions for arbitration and setting the directions and hearing dates. In the absence of agreement between the parties as to the questions for arbitration, I determined that there would be two questions to be answered to resolve the dispute. The first question was set in broad terms and I provided the parties with an opportunity to submit their proposed final wording for the first question by 4:00pm that day. I advised the parties that I would settle the wording for question 1 having regard to the submissions filed. The second question was determined during the proceedings on 29 March 2023. The parties provided their proposed wording or question 1 later that day.

[10] On 30 March 2023, Captain Lucas filed a Form F1 application seeking that I recuse myself from further dealing with the Lucas Application (Recusal Application).

• [11] On 30 March 2023, Qantas made an application pursuant to s.739 of the FW Act in respect of the dispute with Captain Lucas (Qantas Application).[4] Qantas described its application as substantially identical and that it "essentially mimics" the Lucas Application.[5] The Qantas application was allocated to my Chambers on 3 April 2023.

[12] On 31 March 2023, my Chambers issued the notice of listing, directions and questions for arbitration in the Lucas Application. The matter was listed to be heard over three days from 16-18 May 2023. My chambers also issued the notice of listing for the hearing of the Recusal Application.

[13] On 4 April 2023, I heard the Recusal Application.

[14] On 11 April 2023, Captain Lucas lodged a notice of appeal against the directions I made on 31 March 2023 (Directions Appeal) and lodged a jurisdictional objection to the Qantas Application. The jurisdictional objection contends that Qantas has not complied with the dispute settlement procedure in the Agreement.

• [15] On 13 April 2023, I issued my decision in the Recusal Application in which I dismissed the application.[6]

• [16] On 14 April 2023, the President issued a decision in the Referral Application in which the President refused to refer the Lucas Application to a Full Bench.[7]

[17] On 14 April 2023, Captain Lucas lodged a notice of appeal against my decision in the Recusal Application (Recusal Appeal).

• [18] On 17 April 2023, the Full Bench of the Commission refused permission to appeal in the Directions Appeal.[8] During the hearing of the Directions Appeal, Qantas undertook to agree to a variation of the questions for arbitration to include an additional question relevant to an aspect of Captain Lucas' case.[9]

• [19] On 26 April 2023, the Full Bench of the Commission refused permission to appeal in the Recusal Appeal.[10]

[20] On 26 April 2023, I listed the Qantas Application for mention and directions on 1 May 2023.

• [21] On 27 April 2023, Captain Lucas sent correspondence to my Chambers advising that Qantas had commenced proceedings against AIPA in the Federal Court of Australia[11] the previous day and requested that the matter be listed for the purposes of making an application to stay the Lucas Application.

[22] The Lucas Application was listed for mention and directions on 1 May 2023 together with the Qantas Application. During the mention and directions hearing, and after hearing from the parties, I determined, inter alia, that:

(i) The Qantas Application would be heard together with the Lucas Application; and

(ii) The application for an order to stay the Lucas Application and the Qantas Application pending the outcome of the Federal Court proceedings will be listed for hearing on 4 May 2023.

[23] On 3 May 2023, my Chambers issued an amended notice of listing and directions to reflect the applications being heard together, as well as amended questions for arbitration to include the additional question arising out of the undertaking given by Qantas in the Directions Appeal.

[24] The amended questions for arbitration are:

1. If there are currently sufficient bids to the A380 from suitably qualified pilots currently employed by Qantas, then is it that SOTs cannot be allocated by Qantas to the A380?

1. In relation to Qantas' proposed direct allocation of 20 SOTs to the A380 in the training year ending on 30 June 2023, has the Association unreasonably withheld its agreement under clause 19.1.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 at any time during the period between on or around 14 September 2022 and on or around 28 February 2023?

1. If the answer to question 2 is yes, and Qantas directly allocates SOTs to the A380, do the by- pass provisions in clause 16 apply?

[25] By the stay application, Captain Lucas seeks that the Commission decline to exercise its discretion to arbitrate the dispute in the Lucas Application and the Qantas application at this time and adjourn the proceedings pending the outcome of the proceedings numbered NSD346/2023 in the Federal Court on the basis that the proceedings before the Commission and the Federal Court involve substantially the same issues.

[27] The application for a stay of both matters was heard on 4 May 2023 via Microsoft Teams Video. I exercised my discretion to grant permission to the parties to be represented by a lawyer in both matters, as I was satisfied that the preconditions set out in s.596 (2)(a) and (c) of the FW Act had been met. Captain Lucas was represented by Mr I Neil SC. Qantas was represented by Mr M Follett.

[28] Both parties filed an outline of submissions and documentary material. The following witness statements and documents were admitted into evidence:

(i) A witness statement of John Pavlou, Secretary of the Australian and International Pilots Association (AIPA) and employed by Qantas as a First Officer on the Boeing 787 (Exhibit 1);

(ii) The Originating Application and Statement of Claim in Federal Court proceedings numbered NSD346/2023 (Exhibit 2);

(iii) A Letter from AIPA to Herbert Smith Freehills dated 3 May 2023 (Exhibit 3); and

(iv) A witness statement of Douglas Alley, Head of Base Operations, Flight Operations employed by Qantas (Exhibit 4).

[29] Neither Mr Pavlou or Mr Alley were required for cross examination.

[30] For the reasons that follow I have determined to grant the application to adjourn the Lucas Application and the Qantas Application pending the outcome of proceedings numbered NSD346/2023 in the Federal Court.

[31] Qantas commenced the Federal Court proceedings against AIPA on 26 April 2023. By the originating application Qantas claims:

1. Declarations pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth) the respondent engaged in conduct which contravened a civil remedy provision, being section 50 of the Fair work Act 2009 (Cth) (FW Act), by unreasonably withholding its agreement to the direct allocation of up to 20 Second Officers under Training (SOTs) to the A380 aircraft during the training year ending on 30 June 2023, in contravention of clause 19.1.2 of the 19.1.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (EBA10) (paragraphs [9], [14], [19] and [24] of the statement of claim).

• 2. A declaration pursuant to section 21 of the Federal Court of Australia Act 1976 (Cth) that on and from 14 September 2022, or alternatively from the date of the first contravention found as referred to in 1above, the applicant was entitled to directly allocate up to 20 SOTs to the A380 aircraft during the training year ending on 30 June 2023.[12]

• [32] Qantas also claims orders relating to pecuniary penalties and compensation for loss suffered because of the respondent's contraventions.[13]

Power to stay proceedings and relevant principles

[33] Section 589 of the FW Act provides that the Commission may make decisions as to how, when and where a matter is to be dealt with.

[34] It is well established that the power conferred by s.589 of the FW Act is sufficiently broad to encompass a decision that the proceedings be adjourned pending the outcome of related proceedings elsewhere, including the Federal Court.[14]

[35] The decision to grant a stay is a matter of discretion, which discretion is to be exercised on a case-by-case basis, having regard to the statutory framework and all the relevant circumstances before the Commission.[15]

• [36] The statutory framework includes the obligation on the Commission to perform its functions and exercise its powers in a manner that is fair, just and quick and which takes into account equity, good conscience and the merits of the matter.[16]

• [37] A party is entitled to have their matters arbitrated in the ordinary course of the procedure and business of the Commission. A stay application requires justification on proper grounds and an adjournment should not be lightly entertained.[17]

• [38] The issue of whether to exercise the discretion to make a decision to stay/adjourn proceedings before the Commission until after judgment is delivered in another jurisdiction was considered in Bowker where Deputy President Gostencnik stated[18]:

[5] In considering whether to exercise the discretion to make a decision with the effect that the applications would not be dealt with until after judgement is delivered in the Federal Court proceeding, it seems to me appropriate that I have regard to the relevant considerations that are taken into account by the courts in considering applications of this kind. Conveniently, in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited, a case concerning an application to stay a proceeding because another proceeding involving related entities operating with a degree a common management and control, were involved in earlier commenced proceeding in New Zealand, Lockhart J set out a number of considerations his Honour said were relevant to the question whether a stay ought be granted:

"In my opinion relevant consideration is to be taken into account in the present case includes the following:

• Which proceeding was commenced first.
• Whether the termination of one proceeding is likely to have a material effect on the other.
• The public interest.
• The undesirability of two courts competing to see which of them determines common facts first.
• Consideration of circumstances relating to witnesses.
• Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted.
• The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.
• How far advanced the proceedings are in each court.
• The law should strive against permitting multiplicity of proceedings in relation to similar issues.
• Generally balancing the advantages and disadvantages to each party."

• [39] The Deputy President observed that the approach in Sterling Pharmaceuticals Pty Limited v The Boots Company (Australia) Pty Limited[19] has been adopted in a number of subsequent decisions but noted that the list of considerations set out in Sterling Pharmaceuticals was not exhaustive and is not a strict checklist of preconditions.[20]

• [40] In Teys Australia Beenleigh Pty Ltd v AMIEU[21], Bromberg J considered an application to restrain the Commission from dealing with a dispute by arbitration where a party had filed an originating application seeking a declaration in the Federal Court. The matter involved a dispute over the interpretation of an enterprise agreement. Although the injunction was not granted, his Honour accepted that "the substantive question necessarily arises for determination in both this proceeding and the proceeding in the FWC"[22] and that the interests of justice favoured the determination of the Federal Court proceedings before the arbitration proceeded in the Commission.[23]

• [41] In reaching this conclusion, his Honour identified six matters relevant to the exercise of discretion which were helpfully summarised by Commissioner Lee in Metro Trains Melbourne Pty Ltd T/A Metro Trains v Australian Rail, Tram and Bus Industry Union[24] as follows:

1. The Court's specialist function is the final determination of the legal rights of the parties under the Act;

1. The Commission is an inferior tribunal and will be assisted by the reasons of the Court;

1. Complex legal issues were evident in the matter before his Honour which deserved the attention of a superior Court;

1. The issues raised are of general importance including that it may impact on other similar enterprise agreements;

1. If the substantive question continues to determination in private arbitration and at the same time in the Court, there is the potential for the answers to be inconsistent. If the Court first determines the issue, the potential for inconsistent results are minimised. His Honour referred to this as the most important matter; and

• 6. The potential for delay. In the matter before his Honour, the Commission had listed the matter for hearing within days of the proceedings before his Honour.[25]

[42] Captain Lucas submitted that the test of what the interests of justice require and the six matters identified by Bromberg J in Teys was the approach that I should take in relation to the exercise of my discretion in this matter.

• [43] While Qantas submitted that the non-exhaustive considerations identified in Sterling Pharmaceuticals have been repeatedly applied by the Commission[26], it submitted that both Sterling Pharmaceuticals and Teys identify non-exhaustive lists of matters relevant to the exercise of my discretion[27] and that Teys does not materially depart from the matters identified in Sterling Pharmaceuticals.[28]

[44] The approach in Teys has been applied by the Federal Court in subsequent anti-suit injunction applications where there are related proceedings before the Federal Court and the Commission.

• [45] In Aerocare Flight Support Pty Ltd v Australian Municipal, Administrative, Clerical and Services Union[29], Jagot J applied the approach in Teys in determining an application as to whether proceedings in the Federal Court should be stayed pending the outcome of proceedings in the Commission.[30]

• [46] In Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association[31], Katzmann J applied the approach in Teys in determining an application as to whether proceedings in the Commission should be stayed pending the outcome of proceedings in the Federal Court.[32]

[47] As was the case in Teys, the dispute in this matter includes a dispute over the interpretation of an enterprise agreement. Accordingly, and having regard to the authorities and the submissions of the parties, I consider that the approach applied in Teys is the correct approach to apply in this matter.

[48] Captain Lucas submitted that the justification for the exercise of discretion is the pendency of the proceedings in the Federal Court in which arise substantially the same issues as the disputes before the Commission, which Qantas acknowledges in its submissions.

[49] Captain Lucas submitted that any issues present in the dispute before the Commission that do not arise in the originating application filed by Qantas, will be covered in a cross-claim that the AIPA intends to file. It was submitted that there are two sets of proceedings, both pending, and both concerning for every practical purpose the same issues.

[50] Captain Lucas submitted that the circumstances of this matter are closely analogous to those considered by Commissioner Lee in Metro Trains which applied the matters identified in Teys and made detailed submissions comparing the decisions in Teys and Metro Trains to the circumstances of this matter.

[51] In relation to the six matters identified by Bromberg J in Teys, it was submitted that, without doubt, matters 1, 2 and 5 exist and that matter 5 is of primary importance. In relation to matter 5, it was submitted that it the potential for inconsistent answers to substantially the same questions is inevitable.

• [52] In relation to matter 3, Captain Lucas accepted that the legal issues in this matter and in the Federal Court are not of the same degree of complexity as there were in Teys, but submitted there is considerable complexity arising from the competing approaches as to the proper construction of the Agreement.[33]

[53] In relation to matter 4, Captain Lucas accepted the matters in dispute are not of general importance in the manner that they were in Teys but were important to the parties involved and could have serious consequences for members of AIPA.

[54] In relation to matter 6, Captain Lucas accepts that if the stay is granted it will lead to delay. Captain Lucas addressed three matters relevant to delay. First, it was submitted that Qantas' case in relation to prejudice does not rise above unparticularised, generalised assertions.

[55] Second, it was submitted that it does not appear that Qantas has taken any steps to seek an expedited hearing. Mr Neil stated that the AIPA is prepared to undertake to the Commission as a condition of any order that:

(i) If Qantas seeks expedition of the Federal Court proceedings, the AIPA will consent to that application;

(ii) If Qantas does not seek expedition, then upon the filing of its cross-claim, it will do so and will pursue that application regardless of the position Qantas takes; and

(iii) The AIPA will do all things reasonably possible to facilitate the earliest convenient hearing of the proceedings in the Federal Court.

[56] In relation to the third undertaking, Mr Neil stated that the AIPA will be filing its defence and cross-claim within a week. It was submitted that the undertakings and the effect that will be given to them substantially ameliorate the delay.

[57] Third, Captain Lucas submitted that by commencing proceedings in the Federal Court but seeking to run both proceedings it is essentially forum shopping and that Captain Lucas, the AIPA and its members should not be vexed in that way.

[58] Qantas submitted that almost all relevant considerations favour the Commission proceeding to hear and determine the Lucas Application and the Qantas Application.

• The timely resolution of the subject matter of the dispute is necessary and operationally important for Qantas. Qantas submitted that insofar as these proceedings overlap with matters to be considered in the Federal Court, the quick and just resolution of the dispute is best facilitated through the Commission;

• The Lucas Application and the Qantas Application were filed considerably before the Federal Court proceedings and are well advanced. The questions for arbitration have been determined, evidence and submissions have been filed and much of that work will be wasted if those proceedings are stayed. The proceedings in the Federal Court have only recently commenced and a defence is yet to be filed;

• Absent a successful application for expedition, it is unlikely that the proceedings in the Federal Court will be heard before late 2024. Qantas submitted that expedition is a matter for the Federal Court and no weight can be placed on Captain Lucas' submissions and undertakings regarding expedition;

• There is no intention for both matters to be prosecuted at the same time. Qantas intends to seek an adjournment of the Federal Court proceedings pending the outcome in these proceedings. Qantas submitted that vexation, by having to run two proceedings at the same time, will not arise;

• The proceedings in the Federal Court will not resolve once and for all, the proceedings in the Commission;

• The contention that the Federal Court, rather than the Commission, has a specialist function of determining past rights and liabilities in a binding fashion or that there is the potential for inconsistent findings is overstated; and

• The disputes before the Commission do not raise overly complex legal issues, nor do the issues have any broader ramifications beyond Qantas and its long haul pilots.

[60] Turning to the matters in Teys, Qantas submitted that matters 3 and 4 in Teys do not arise.

[61] In relation to matter 3, Qantas submitted that the legal issues in this matter and in the Federal Court are not of the same degree of complexity as there were in Teys, and that the only issue that arises (or overlaps) in the Federal Court proceedings is question 2 of the questions for arbitration.

• [62] Qantas submitted the matter does not involve issues of construction, rather it involves a nuanced factual question, but even if construction issues arise, the place for the determining the proper construction of an enterprise agreement is the Commission. In support of this submission, Qantas cited the decisions in Clermont Coal Pty Ltd v Brown[34] and One Tree Community Service Inc v United Voice (No 2).[35]

[63] In relation to matter 4, Qantas submitted it is simply unknown how many pilots this case will affect as it is unknown how many direct allocations Qantas might have a desire for over the next five years, what operational reasons might exist in the future, and what reasons the AIPA may have for refusing.

[64] Qantas submitted that while matters 1, 2, and 5 apply, they are structural matters that apply in every case.

• [65] Specifically turning to matter 5, Qantas submitted that the potential for inconsistent decisions will be avoided if the Commission hears and determines the matter first. Qantas cited the decision in Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union[36] as authority for its contention that if the Commission determines an issue of law or fact in private arbitration, the Federal Court cannot determine it because the justiciable controversy has been resolved by private arbitration, subject only to an argument that the private arbitration does not bind the parties in the Federal Court proceedings.

[66] In relation to point 6, Qantas submitted that this matter is crucial. Qantas submitted that it is not an insignificant matter to interfere with the ordinary course by a stay of proceedings and the length of delay contemplated by the application is against the proper administration of justice in circumstances where the Commission has a statutory mandate to deal with matters quickly.

[67] Qantas submitted that Captain Lucas' reliance on Metro Trains is misplaced as the matters were at different stages - the Federal Court proceedings were listed for hearing, whereas the Commission proceedings were at the conciliation stage.

[68] Qantas submitted that delay in these proceedings will lead to prejudice through a training backlog with the result that it will not have sufficient pilots to operate the flights that it wants to operate.

• [69] There can be no question that the Federal Court has jurisdiction to determine the proper construction of an enterprise agreement.[37] There also can be no question that a decision of the Federal Court in respect of a particular matter will be binding on the Commission to the extent that the Commission is dealing with the same or substantively the same matter.

• [70] Notwithstanding that an enterprise agreement provides for the resolution of the disputes by private arbitration, that does not limit or preclude the parties from invoking the jurisdiction of the Federal Court.[38]

[71] In its originating claim, Qantas seeks a declaration that the AIPA contravened a civil remedy provision by unreasonably withholding its agreement in contravention of clause 19.1.2 of the Agreement. Qantas also seeks orders relating to the payment of pecuniary penalties.

[72] Counsel for Captain Lucas foreshadowed that any residual matters in these proceedings will form part of a cross-claim to be filed by the AIPA. The residual matters, namely questions 1 and 3 of the questions for arbitration, relate to the proper construction of clause 19.1.2 of the Agreement and the interrelationship, if any, of clause 19.1.2 and clause 16.5. Counsel for Captain Lucas has also stated that the AIPA will be seeking orders relating to the payment of pecuniary penalties against Qantas.

[73] It is a matter of record that the AIPA has subsequent to the hearing of this application filed its defence and cross claim. If AIPA's cross-claim has sought declarations as foreshadowed by Counsel for Captain Lucas, then the substantive issues to be resolved necessarily arise for determination in both this proceeding and the Federal Court proceedings.

[74] In these circumstances, the considerations identified as matter 1 and matter 2 by Bromberg J in Teys weigh in favour of granting the stay application.

[75] In relation to matter 3, I accept Qantas' submission that it does not arise in these proceedings.

[76] In relation to matter 4, while I accept the proceedings are not of general importance in the manner that they were in Teys, I accept that similarly to the finding of Commissioner Lee in Metro Trains, this issue is clearly important to the parties and its resolution could affect the services Qantas provides and/or the seniority and remuneration of Qantas' long haul pilot cohort.

[77] In relation to matter 5, there is clearly a risk of inconsistent answers being provided on the same issues, namely the proper construction of the Agreement and whether the AIPA has unreasonably withheld its agreement. In Teys, Bromberg J identified matter 5 as the most important. I agree. Furthermore, that the parties to the Federal Court proceedings have both sought (or foreshadowed seeking) orders relating to pecuniary penalties against the other leads to a conclusion in my view that the risk of inconsistent answers weighs more heavily than might otherwise be the case.

• [78] In relation to Qantas' submission that it has no intention for both matters to be prosecuted at the same time, that is ultimately a matter for the Federal Court. In Aerocare Flight Support, Jagot J refused an application that an originating application be stayed pending the outcome of proceedings in the Commission. Furthermore, Her Honour held that if the construction of an instrument is a central consideration in the broader controversy, a decision of the Federal Court which provides determinative construction would assist the Commission in discharging its functions.[39]

• [79] Qantas cited the decision in Energy Australia Yallourn in support of its submission that the risk of inconsistent answers will not arise if these proceedings are determined first. In Energy Australia Yallourn, the originating application was filed after the determination of the dispute by a Full Bench of the Commission. His Honour, Bromberg J held that the Federal Court lacked jurisdiction to entertain the originating application because the justiciable controversy between the parties was extinguished by private arbitration conducted by the Commission.[40] The circumstances in Energy Australia Yallourn are clearly distinguishable from the matter before me where the Commission is yet to resolve the dispute.[41]

[80] I also consider that Qantas and the AIPA have both sought (or foreshadowed seeking) orders relating to pecuniary penalties against the other, and that Captain Lucas has raised a jurisdictional objection to the Qantas Application distinguishes this matter from Clermont Coal and One Tree.

[81] In relation to the matter 6, this is a matter which I have given careful consideration. The proceedings in the Commission were commenced prior to the Federal Court proceedings. The proceedings in the Commission are listed for hearing over three days commencing tomorrow. I accept granting the stay application will result in some delay.

[82] However, while Qantas submitted that the uncertainty regarding the timing of the Federal Court proceedings could lead to the matter not being heard before late 2024, since the hearing of the application the following developments have occurred:

(i) The AIPA have filed its defence and a cross-claim;

(ii) The Federal Court has listed the Federal Court proceedings for case management hearing on 1 June 2023.

[83] The listing of the case management on 1 June 2023 is well in advance of Qantas' anticipated time-frame.

• [84] In Teys, Bromberg J anticipated that the Court will be able to move quickly and in those circumstances the delay would not be great.[42] In Qantas v ALAEA, Katzmann J considered that costs and delay can be mitigated "if the parties and their lawyers are sensible and conduct themselves in accordance with their obligations under s.37N of the Federal Court of Australia Act 1976 (Cth). Amongst other things, they should consider agreeing on the facts and if necessary, serving notices to admits."[43]

• [85] In relation to the issue of prejudice, I have taken into consideration the evidence of Mr Alley. I note that Mr Alley states that it is important for operational reasons that the dispute be resolved as soon as possible.[44] It is apparent that evidence was given prior to the Federal Court listing the case management hearing on 1 June 2023. While there is some uncertainty as to delay, the case management hearing has been listed well in advance of Qantas' anticipated time-frame. Furthermore, the matters identified by Katzmann J in Qantas v ALAEA and the undertaking provided by the AIPA regarding an application for expedition go towards mitigating delay.

[86] In relation to the preparation of evidence and submissions in the Commission proceedings, I do not accept that much of that work will be wasted if an adjournment is granted as the materials could be reprised and used for the Federal Court proceedings.

• [87] Finally, an issue arose in the course of the hearing as to whether any finding by the Commission in relation to question 2 binds the AIPA in circumstances where the AIPA is not a party to the dispute and cannot be a party to a dispute under the terms of the Agreement.[45] The uncertainty of whether any determination by the Commission will be binding on the AIPA weighs in favour of the stay pending the determination of the Federal Court proceedings.

[88] This application has raised difficult issues in which there are competing considerations.

[89] Having regard to the consideration set out above, I am satisfied that the application to stay the proceedings in matters C2023/1371 and C2023/1755 pending the outcome of the proceedings numbered NSD346/2023 in the Federal Court be granted. An order to that effect will be issued with this decision.

I Neil SC of counsel for Captain Lucas in both matters.

M Follett of counsel for Qantas Airways Limited in both matters.

[2] See part 2.1 of the Application.

[3] Captain Anthony Lucas v Qantas Airways Limited (2022/7094).

[5] Qantas Application, Part 2.1 at [9].

[6] Captain Anthony Lucas v Qantas Airways Limited [2023] FWC 878.

[7] Captain Anthony Lucas v Qantas Airways Limited [2023] FWC 888.

[8] Captain Anthony Lucas v Qantas Airways Limited [2023] FWCFB 77.

[10] Captain Anthony Lucas v Qantas Airways Limited [2023] FWCFB 80.

[14] See for example, Bowker v DP World Melbourne Limited [2014] FWC 7326 (Bowker) at [4]; French v The Good Guys Discount Warehouse (Australia) Pty Ltd [2017] FWC 3545 (Good Guys) at [22]; Re Esso Australia Pty Ltd [2018] FWC 6244 (Esso) at [10]; Mubashir v Rasier Pacific Pty Ltd [2021] FWC 4729 (Rasier Pacific) at [10]; Jayasundera v Electricity Networks Corporation [2022] FWC 1611 (Jayasundera) at [8] (see also Jayasundera v Electricity Networks Corporation [2022] FWCFB 149 (Jayasundera Appeal) at [24]).

[15] Bowker at [6]; Esso at [11] and [13]; Visy Board Pty Ltd v Rustemovski [2018] FWCFB 1255 (VisyBoard) at [42]-[49]; Jayasundera at [20].

[16] Esso at [11] and [19]; Jayasundera Appeal at [44].

[17] Jayasundera Appeal at [44]-[45].

[19] [1992] FCA 71 (Sterling Pharmaceuticals).

[21] [2015] FCA 1033 (Teys).

[24] [2017] FWC 4571 (Metro Trains).

[25] Metro Trains at [13] citing Teys at [31]-[38].

[29] [2018] FCA 128 (Aerocare Flight Support).

[30] Aerocare Flight Support at [27] and [31].

[31] [2020] FCA 682 (Qantas v ALAEA).

[34] [2015] FCAFC 136 (Clermont Coal) at [9]-[12].

[35] [2020] FCA 390 (One Tree) at [97].

[36] [2017] FCA 1245 (Energy Australia Yallourn).

[37] Teys at [31]; Aerocare Flight Support at [27] and [29]; Qantas v ALAEA at [6].

[38] Teys at [42]; Qantas v ALAEA at [97].

[39] Aerocare Flight Support at [31] citing Teys.

[40] Energy Australia Yallourn at [106].

[41] See Aerocare Flight Support at [21].

[45] See clause 47.2 of the Agreement, definition of 'party'.

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