s.615 - President may direct a Full Bench to perform a function

Request for referral of application under Fair Work Act 2009 (Cth) s 739 to a Full Bench - Fair Work Act 2009 (Cth) ss 582, 615 - request refused.

• [1] On 15 March 2023, Captain Anthony Lucas applied under s 739 of the Fair Work Act 2009 (Cth) (FW Act) for the Commission to deal with a dispute with Qantas Airways Limited (Qantas) regarding clause 19.1.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020[1] (Agreement). That clause reads:

Upon completion of training, a SOT will be allocated by the Company to the B787, A330 or A330/A350 SFF aircraft rather than the B747 and A380 aircraft unless there are insufficient bids from suitably qualified pilots employed prior to the commencement of clause 32.7, or otherwise agreed with the [Australian and International Pilots] Association for operational reasons. The Association will not unreasonably withhold agreement.

[2] The Australian and International Pilots Association (AIPA) is covered by the Agreement. The dispute is said to be about whether the allocation of pilots to aircraft types should be in accordance with seniority, or whether clause 19.1.2 requires Qantas to obtain the AIPA's consent in order for a direct allocation to be valid.

[3] On 17 March 2023, Captain Lucas requested by correspondence that his dispute application be referred to a Full Bench of the Commission pursuant to s 615 of the FW Act. The dispute application is currently allocated to Commissioner Ryan, who has issued directions and listed the matter for hearing from 16 to 18 May 2023. Captain Lucas has applied for permission to appeal the Commissioner's directions. That matter is listed for hearing on 17 April 2023.

[4] Section 615 of the FW Act provides that I may direct a Full Bench to perform a function or exercise a power:

615 The President may direct a Full Bench to perform function etc.

• (1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.

• (2) The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters.

• (3) To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.

[5] It is well-settled that s 615 of the FW Act confers a broad discretion upon the President to direct that a function or power be exercised by a Full Bench. I note that it is not suggested by Captain Lucas that the public interest would require me to refer the matter under s 615A.

[6] In support of his request for referral to a Full Bench, Captain Lucas contends in his correspondence that:

• An appeal of any single-member decision is inevitable because there are potentially conflicting authorities on whether post-agreement conduct may be used to aid interpretation, in this case of clause 19.1.2.

• The urgency of the construction exercise in dispute and its ability to affect the covered pilots' future rights and seniority mean that referring the dispute application to a Full Bench would be in the interests of justice.

• Referring the dispute application to a Full Bench would also mean that the parties would only need to bear the costs of a single arbitration by the Commission.

[8] I am not satisfied that I should exercise my discretion in favour of referring Captain Lucas' dispute application to a Full Bench. The clause of the Agreement that is the subject of the dispute is clearly specific to the circumstances of Qantas' business and, thus, the dispute has no broader industrial ramifications requiring Full Bench consideration. Captain Lucas has not explained why, nor am I persuaded that, the alleged issue of 'potentially conflicting authorities on whether post-agreement conduct may be used to aid interpretation' will necessarily arise in the determination of the matter. Both parties agree that the resolution of the dispute is time-sensitive, in which case the preferable course is for the matter to remain with the Commissioner, who has already made directions and listed the matter for hearing, rather than starting again before a Full Bench. Whether or not an appeal is 'inevitable', as Captain Lucas suggests, the time sensitivity of the matter makes it preferable that any necessary fact-finding be undertaken by the Commissioner rather than a Full Bench. Any appeal subsequent to the Commissioner's decision may be the subject of an expedited hearing if necessary.

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