[2024] FWC 685

The attached document replaces the document previously issued with the above code on 15 March 2024.

[2024] FWC 685

Fair Work Act 2009

s.234 - Application for an intractable bargaining declaration

Network Aviation Pty Ltd as Trustee for The Network Trust T/A Network Aviation Australia

Australian Federation of Air Pilots, Australian and International Pilots Association & Transport Workers' Union of Australia

Application for an intractable bargaining declaration

• [1] Network Aviation Pty Ltd as Trustee for The Network Trust T/A Network Aviation Australia (Network or Applicant) has applied for an intractable bargaining declaration (intractable bargaining declaration/declaration) pursuant to s 234 of the Fair Work Act 2009 (Cth) (Act) in respect of the bargaining with the Australian Federation of Air Pilots (AFAP), the Australian and International Pilots Association (AIPA) and the Transport Workers' Union of Australia (TWU) (collectively the Unions) for the proposed Network Aviation Pilots Enterprise Agreement 2023 (proposed agreement).

• [2] Network is headquartered in Perth, Western Australia, and is part of the Qantas Group, being a wholly owned subsidiary of Qantas Airways Limited.[1] It provides a mix of air transport services to the general public and air charter services to private clients.[2] Approximately 60% of its operations are closed charter services for the resources industry and its fly-in-fly-out workforces (FIFO). The remaining 40% of its air transport services are flights available for booking by the general public, however the majority of this capacity is filled by other private clients booking seats for their FIFO workforces. Of Network's private clients, approximately 60% are in the iron ore mining industry, 10% are in the gold mining industry and other metals, and 30% are in the oil and gas industry.[3]

• [3] As the name suggests, the proposed agreement would apply to Network's pilots, who at the time the application was made, amounted to approximately 260 pilots, including captains and first officers.[4]
• [4] AFAP, AIPA and the TWU are each default bargaining representatives pursuant to s 176 of the Act. According to Network, at the time of the protected action ballot held on or around 29 August 2023, AFAP had approximately 85% of the membership of the pilot group.[5]

• [5] The pilots and the parties to this matter are currently covered by the Network Aviation Pilots Enterprise Agreement 2016[6] (2016 Agreement), which passed its nominal expiry date on 31 October 2020.

• [6] Bargaining for the proposed agreement to replace the 2016 Agreement has been underway for several years, with an initial notice of employee representational rights (NERR) having been issued in 2019.[7] However, bargaining was paused during 2020-2022 due to the COVID-19 pandemic. It recommenced on 13 September 2022,[8] with the NERR having been re-distributed on 5 August 2022[9] and bargaining continuing until in or around early 2024.

• [7] There have been several ballots in respect of proposed agreements. On 30 September 2023, Network put a proposed agreement out to the ballot and by 12 October 2023, the proposed agreement was voted down (90% of those employees casting a valid vote, voted against making that proposed agreement ) (first ballot).[10] On 29 November 2023, another proposed agreement was put to the vote but not approved by the employees, with 54% of those employees casting a valid vote, voting against making that proposed agreement (second ballot). On 22 December 2023, Network again put a proposed agreement out to vote, with the vote to open on 3 January 2024 and close on 8 January 2024. That proposed agreement was not approved - having been rejected by a greater margin than in the second ballot (third ballot). On 29 February 2024, Network put a proposed agreement to a further ballot of employees (fourth ballot). It was the same proposed agreement that was put to the pilots on 22 December 2023. The ballot opened on 8 March 2024 and closed on 12 March 2024.[11] The result of that ballot was a 76.72% 'no' vote as a percentage of valid votes.[12]

• [8] In respect to the proposed agreement that was voted on in the second ballot, each of the Unions had endorsed a 'yes' vote for the proposed agreement.[13] Similarly, the proposed agreement that was put to the vote in the third ballot had attracted endorsement of a 'yes' vote from both AFAP and the TWU, albeit AIPA raised concerns about the introduction of the 'low hour F/O rate' for low experienced pilots and did not endorse the proposed agreement. However, AIPA did agree to the proposed agreement being put to vote.[14]

• [9] In the period of October 2023 up until the date of the hearing on 14 March 2024, there had been multiple occurrences of industrial action. On 4 October 2023, AFAP members participated in a 24 hour stoppage of work. On 8 February, 14 February, 15 February, 16 February, 17 February, 18 February and 19 February 2024, there were stoppages of all work for 24 hours, and on 22 February 2024, AFAP provided Network with notice of protected industrial action in the form of a stoppage of all work for 24 hours, commencing on 28 February 2024.[15] AFAP members had engaged in further industrial action on 1 March, 4 March and 8 March 2024.[16] During the period of industrial action between 1 March and 8 March 2024, 79 of 270 flights had been cancelled.[17]

• [10] On 8 March 2024, AFAP provided notice of 24 hour stoppages of all work on 14 March and 15 March 2024.[18] It was uncontroversial that as of the date of the hearing, on 14 March 2024, AFAP members were engaged in industrial action with it purported to continue over the course of 15 March 2024 and 18 March 2024.

• [11] At the time the application was made the Unions opposed the making of the declaration. However, on the day prior to hearing, AFAP advised Chambers that its position had changed, explaining that it did not oppose the making of the declaration and that it continued to seek a post intractable negotiation period of two weeks in the declaration.

• [12] Following AFAP's change in position, the TWU and AIPA clarified on 13 March 2023 that they no longer opposed the declaration being made; and notwithstanding the organisational views expressed, they accepted that there was a basis upon which the Commission could form the relevant state of satisfaction regarding the application on foot.

• [13] As noted, a hearing was conducted on 14 March 2024 to determine the application. At the hearing's commencement, counsel for AFAP confirmed that AFAP did not oppose the application. Counsel clarified that AFAP did not make any admissions or concessions in respect of Network's application, or any submission made by Network, or evidence relied upon in support of the application, and the position adopted was taken without prejudice to the case AFAP would advance if an intractable bargaining declaration were granted. To that end, AFAP sought to no longer rely upon its submissions filed on 7 March 2024 or the witness statement of Mr Chris Aikens, Senior Industrial Officer of AFAP, similarly filed on 7 March 2024. The witness for Network was not required by AFAP for cross examination.

• [14] Counsel for the TWU and AIPA submitted that the subjective view of both organisations was that bargaining was not intractable. However, counsel continued that such statement was a subjective view, submitting that both organisations accepted that on the material that Network will tender, being its witness statements and agreed statement of facts, there was an adequate basis upon which the Commission could form the required state of satisfaction in respect of the application. TWU and AIPA therefore did not oppose the declaration being made and as such did not propose to call any witness evidence and the submission previously filed, were not relied upon. Again, TWU and AIPA did not require Network's witness for cross examination.

• [15] During the hearing, counsel for Network submitted that the most appropriate course for the Commission to take was to issue an order for a declaration on 14 March 2024, with reasons such as necessary provided at a time, thereafter, were I not to provide an ex tempore decision there and then. Counsel submitted that protected industrial action was currently occurring and industrial action was scheduled to occur on 15 March 2024 and 18 March 2024. It was, therefore, Network's contention that if the Commission were indeed so satisfied of the relevant statutory requirements, it was most appropriate to make a declaration by order on the day of the hearing. Proceedings were stood down for a matter of mere minutes to enable counsel for both AFAP and the TWU and AIPA, to seek instruction.

• [16] On recommencement, counsel for Network advised that the Applicant's position had been revisited in the interregnum. The short basis for that slight change, was articulated by counsel in the following terms. Under s 235(4)(a) of the Act, the declaration comes into operation on the day it is made. Under s 413(7)(c), industrial action does not meet a common requirement if a declaration is in operation. The arguable consequence, although certainly not clear, would be that any industrial action taken on the day of the hearing would not be protected. It was understood by Network that were the declaration made, it would be made as of 15 March 2023 on the basis that the AFAP would undertake to withdraw its notice and not engage in industrial action on that day.

• [17] AFAP submitted that its position was that it would not be appropriate for a declaration to be made on the day of the hearing for reasons articulated by counsel for Network. AFAP further submitted that if the Commission was minded to make a declaration, it was appropriate for the order to be made on 15 March 2024, again for the reasons explained by Network's counsel.

• [18] Counsel for AFAP advised that he had been instructed on behalf of AFAP to make the following undertaking, that is, that AFAP would, on 14 March 2024, withdraw the notice of protected industrial action that has been notified to occur tomorrow, Friday, 15 March 2024, and on Monday, 18 March 2024. Counsel submitted that this was part of the agreed arrangement, between Network and the AFAP.

• [19] In respect of the post declaration negotiating period, counsel for AFAP submitted that if the Commission is persuaded to make the declaration sought, AFAP agrees that there ought to be a 13 day period, or rather 14 day period as it now is proposed to be, and that is appropriate in all the circumstances.

• [20] Counsel for the TWU and AIPA had no further submissions to add.

• [21] Having considered all of the relevant evidence and submissions, I have now determined that the application should be granted. In brief terms, I am persuaded that presently there is no reasonable prospect of an agreement being reached if the declaration is not made by the Commission and it is reasonable in all the circumstances to make the declaration.

• [22] My reasons for that conclusion and the disposition of the matter are set out below.

• [23] In the lead up to the hearing, the parties submitted a Statement of Agreed Facts (SOAF). Those agreed facts are set out below, in addition to further background to the matter derived and summarised from the witness statement of Captain Evan Wayne Bartlett, General Manager Flight Operations and Chief Pilot of Network.

• [24] Between 13 September 2022 and 27 March 2023, there were ten bargaining meetings. On 27 March 2023, Network and the Unions reached in-principle agreement in respect of the terms of the proposed agreement and that the Unions would endorse the proposal and recommend its support with their respective members.[19]

• [25] On 20 April 2023, Network circulated a draft 'Heads of Agreement' to the Unions.

• [26] On 9 June 2023, AFAP advised Network that it was conducting a survey of its membership in order to canvass the views of members in respect of the proposed agreement.[20]

• [27] On 15 June 2023, Network circulated a draft of the proposed agreement to the Unions and proposed a drafting meeting for the following week.[21]

• [28] On 15 June 2023, in response to Network's email circulating a draft of the proposed agreement, AFAP sent an email to Network, AIPA and the TWU. In the email, AFAP advised Network it had completed its foreshadowed survey with its membership and that the result of the survey was that 92% of members who participated (with a participation rate of 90%) responded that they found the proposed agreement unacceptable. AFAP also advised Network that as a result of the survey, AFAP would not endorse the proposed agreement to their respective members and if the proposed agreement was put out for a vote in its current form AFAP would recommend that its members reject it. AFAP also advised Network that it was willing to have further negotiations in an effort to achieve a proposal that was more suitable to its members.[22]

• [29] On 20 June 2023, in response to Network's email circulating a draft of the proposed agreement, AIPA advised Network and the Unions that the AIPA Committee of Management had identified several concerns that did not align with the interests of AIPA members and proposed further discussions to resolve these issues.[23]

• [30] On 30 June 2023, Network sent an email in response to AFAP's email of 15 June 2023, in which Network indicated that it was not willing to have further negotiations and proposed dates for drafting meetings in respect of the proposed agreement circulated by Network on 15 June 2023.[24]

• [31] On 3 July 2023, AFAP sent an email in response to Network's email of 30 June 2023, in which AFAP advised Network that it would not be attending the proposed drafting meeting and that the next step to be taken by AFAP would be to provide a proposal that would be more palatable to its members.[25]

• [32] AFAP did not attend the drafting meeting in respect of the proposed agreement circulated by Network on 15 June 2023.[26]

• [33] On 28 July 2023, AFAP provided Network with a revised position with respect to its claims for a proposed agreement.[27]

• [34] On 15 June 2023, 14 August 2023 and 28 August 2023, Network held drafting sessions attended by the TWU and AIPA. AFAP refused to participate in these meetings.[28]

• [35] On 25 August 2023, Network circulated a draft of the proposed agreement to the TWU and AIPA.[29]

• [36] On the same day, AFAP filed an application for a protected action ballot order with the Fair Work Commission (the Commission). There were 211 pilots eligible to vote in the protected action ballot.[30]

• [37] On 29 August 2023, the Commission made the protected action ballot order.[31]

• [38] On 5 September 2023, Network and the Unions attended a s 448A compulsory conciliation conference before Schnieder C, during the ballot period.[32]

• [39] The abovementioned conference did not result in a resolution of the outstanding issues in bargaining. Following the conference, there were a small number of outstanding drafting issues with the TWU and AIPA, which were resolved over the coming weeks.[33]

• [40] After the abovementioned conference, Network and the TWU and AIPA progressed the proposed agreement and ultimately an in-principle position was reached with those two Unions.[34]
• [41] On 20 September 2023, the first access period commenced and Network emailed the pilots with the access period materials (including a copy of a proposed agreement (the 20 September proposed agreement)) for voting between 28 September 2023 and 3 October 2023.[35]

• [42] On 27 September 2023, Network decided to postpone the vote, so as to allow additional time for AFAP to consider its position.[36]

• [43] On 28 September 2023, AFAP provided Network with notice of protected industrial action in the form of a stoppage of all work from 00.01AM (AWST) on 4 October 2023 until 23.59PM (AWST) on 4 October 2023.[37]

• [44] On 30 September 2023, Mr Bartlett emailed the pilots with the access period materials (including a copy of the proposed agreement (the 30 September proposed agreement)) for voting between 8 October 2023 and 12 October 2023. This proposed agreement had the support of the TWU, but not AIPA and AFAP.[38]

• [45] On 4 October 2023, AFAP members participated in a 24 hour stoppage of work as notified.

• [46] On 11 October 2023, Network met with AFAP.

• [47] On 12 October 2023, the ballot results were declared. The proposed agreement was not voted up, with 90% of those pilots entitled to vote voting against the proposed agreement.[39]

• [48] On 18 October 2023, Network filed an application under s 240 of the Act for the Commission to deal with a dispute about the proposed agreement. This is the only application that has been filed under s 240 of the Act.[40]

• [49] The s 240 application was allocated to Binet DP. Several conferences were held before Binet DP on the following dates: (a) 30 October 2023; and (b) 7 to 10 November 2023 (inclusive).[41]

• [50] On 10 November 2023, Network and the Unions reached in-principle agreement in respect of the terms of the proposed agreement and that the Unions would endorse the proposal and recommend its support with their respective members.[42]

• [51] On 10 November 2023, a joint statement was issued to the pilot workforce by Network, AFAP, AIPA and the TWU, which confirmed that the parties had reached in-principle agreement on the proposed agreement.[43]

• [52] On 29 November 2023, Network commenced another access period for the pilots to approve the proposed agreement (the 29 November 2023 proposed agreement), consistent with the in-principle agreement reached with the Unions. Each of the Unions endorsed a 'yes' vote for the proposed agreement from their respective members.[44]

• [53] The voting period for the 29 November proposed agreement opened on Saturday, 9 December 2023, and closed on Wednesday, 13 December 2023. On 13 December 2023, the ballot results were declared. The 29 November proposed agreement was not voted up, with a majority of those pilots entitled to vote voting against the proposed agreement (54%), despite the support of the bargaining representatives.[45]

• [54] After this unsuccessful vote and following further discussions between the bargaining representatives about the status of the proposed agreement, changes were made to the proposed agreement. For pilots, these were in the nature of improvements to the terms and conditions proposed, and for Network, the introduction of a reduced base salary for 'low experience' first officers that applied until the first officers reached 1500 flying hours or 3 years' service. Those changes were agreed to and endorsed by AFAP and TWU.[46]

• [55] On 22 December 2023, a further version of the proposed agreement was again put to the pilots for voting (the 22 December proposed agreement).[47]

• [56] AFAP and TWU endorsed a 'yes' vote for the proposed agreement from their respective members. AIPA raised concerns about the introduction of the 'low hour' F/O rate for low experienced pilots and did not endorse the proposed agreement. However, AIPA agreed to the proposed agreement being put to ballot.[48]

• [57] The voting period for the 22 December proposed agreement opened on 3 January 2024 and closed on 8 January 2024. On 8 January 2024, the ballot results were declared. The 22 December proposed agreement was not voted up, with a majority of those pilots entitled to vote voting against the proposed agreement (57%), despite the support of the bargaining representatives. The ballot results indicated that the proposed agreement was rejected by a greater margin on this vote, than it was in the second ballot in mid-December 2023 - the no vote increased from 54% to 57%.[49]

• [58] Following the third unsuccessful ballot, all parties agreed that the Unions would provide feedback on their main issues in the proposed agreement. In an email to pilots, Network stated 'we reached out to the unions to understand any feedback around the result'. Network was not involved in the survey.[50]

• [59] On 23 January 2024, AFAP wrote to Network outlining seven potential issues said to have been raised by AFAP members as being 'crucial for potential endorsement'.[51] Attachment 11 to the SOAF, an email from Mr Chris Aikens to Mr Evan Bartlett dated 23 January 2024, with the subject line AFAP Member Surveys, set out:

Further to the recent no vote for the revised EA and subsequent to a number of surveys undertaken of the AFAP membership in the last week, we can now confirm that the main areas that the membership have flagged as being crucial for a potential endorsement by the pilot group, are as follows (in no order of priority):

1. 2 Hour sign-on
2. No 4 am starts after days off
3. Business class duty travel
4. DHA rate as other Qantas entities
5. Increased overtime rate
6. 10 days off per roster period
7. A revised rostering appendix to spell out more clearly rostering protections

It must be pointed out that the level of engagement of the membership was extremely high and furthermore no single or double item on that list would warrant a positive vote as the pilot group.

The AFAP remains available to meet in person if the company wishes to discuss these items.

• [60] On 1 February 2024, Mr Edward Nell of the TWU wrote to Network outlining three issues that TWU members 'would like to see addressed'.[53] Mr Nell's email read:

Following the most recent "no" vote on the proposed Network Aviation Pilots Enterprise Agreement 2023, we have had individual discussions with our Network members to ascertain the main issues they would like to see rectified.

The following issues, listed in order of importance, are the main issues members would like to see addressed:

1. Additional Hours rate - the Tier 2 rate to be applicable for any flying hours flow above 59 per roster period.
2. Number of RDOs - to be increased to 10.
3. Clearer (less ambiguous) working in relation to rostering provisions.

Please do not hesitate to call if you would like to discuss the responses in more detail.

• [61] On 2 February 2024, Ms Lungaka Mbedla of AIPA wrote to Network indicating that it had recently surveyed its members, and as a result it proposed changes to the proposed agreement in relation to two issues. Ms Mbedla's email detailed the following:

I am one of the In-House Lawyers at AIPA and I will be supporting our Network members with the ongoing Enterprise Agreement negotiations moving forward.

As you are aware, we recently surveyed our members to seek feedback on the proposed EA. The survey results showed similar numbers for 'yes' and 'no' votes in the recently proposed EA. Based on this information, AIPA is of the view that there is a real risk that putting the proposed EA out to vote without further changes will result in another 'no' vote.

APIPA's view is that further changes are needed to get the proposed EA over the line. Accordingly, we propose the following changes based on feedback from our members:

1. 10 RDOS, and
2. Removal of tier 1 the Additional Hourly Payment, so that all hours flown in excess of 59 hour attract the higher tier 2 rate.

The changes above are achievable for the Company and would place the proposed EA in a strong position for a 'yes' vote.

AIPA representatives are open to further bargaining meetings to discuss the proposed changes and work towards finalising the proposed EA as soon as practicable.

Please confirm if you are agreeable to the proposed changes and if the Company is open to further discussions...[55]

• [62] At 2.22 PM (AWST) on 2 February 2024, Network responded to AFAP's email of 23 January 2024 informing AFAP that five cost items were now 'unagreed' for the purpose of a workplace determination. That letter sent by email states as follows:

Network Aviation Pilots Enterprise Agreement 2023

As you know, following a number of section 240 conferences facilitated by the Fair Work Commission, the Company, the AFAP, the TWU and AIPA reached in-principle agreement in relation to the proposed Network Aviation Pilots Enterprise Agreement 2023. Since that occurred, the Company has put proposed agreements to two separate ballots (with the support of each of the unions), and on both occasions a majority of employees voted against the proposed agreement.

Since those ballots, the AFAP has undertaken a survey of its members to identify apparent areas of concern. Your email to me of 23 January 2024 sets out seven issues said to have been raised by AFAP members as being "crucial for potential endorsement". In respect of at least some of those issues (e.g. items 4, 5 and 7), there is no detail provided in relation to exactly what the issue is or what employees are seeking. Nonetheless, it is clear that each of the items involves a significant cost up and/or inflexibility for the Company. Further, there is no suggestion in your email or otherwise, that the AFAP (as bargaining representative for its members) is pursuing any of these issues as claims in bargaining. Of note, your email identifies explicitly that the AFAP is unclear as to whether movement by the Company on one or more of the seven issues would actually lead to a favourable vote by AFAP members.

During bargaining and throughout the section 240 conferences that led to in-principle agreement twice being reached, the Company has (repeatedly) made clear its position that it could only agree to concessions on the basis that:

(1) agreement to a particular item was subject to agreement on the overall package; and

(2) the overall package could not exceed a particular cost to the Company.

In relation to the second point, the Company has at various times agreed to "re-shape" the offer, provided that the overall cost to the Company did not increase and the changes worked operationally.

As outlined above, it is clear that the seven issues identified in your email involve substantial additional cost. Accordingly, and consistent with the Company's repeatedly expressed position, it cannot agree to these issues, noting also that your email does not identify what terms (if any) previously agreed, the AFAP and its members would be prepared to move on in order to offset the substantial cost associated with any or all of these seven issues. In this light and as you have indicated that those issues are 'crucial' to an agreement being reached, it appears that bargaining is at an impasse, with no reasonable prospect of agreement being reached.

In light of the above and in circumstances where the Company has now put the proposed agreement to three unsuccessful ballots, two of which had the support of all three unions, the Company intends to shortly file an application in the Fair Work Commission under section 234 of the Fair Work Act 2009 (Cth). A copy of the application will be provided to the AFAP once it is filed.

As it appears that the AFAP is (or at least its members are) now pursuing further improvements (albeit some vaguely expressed) on top of the matters that the Company was prepared to agree to in the package put forward in the proposed agreement, certain terms contained in the proposed agreement will, of necessity, become matters at issue for the purposes of any intractable bargaining related workplace determination. Those matters now unagreed are:

• improvements made to salary tables (including the new Year 7 and 10 salaries)
• DHA
• backpay
• improvements to the Additional Hourly Payment rate and structure
• RDO provisions - definition of an RDO and restrictions around an RDO

This is necessary having regard to the Company's clearly expressed position that it cannot contemplate an outcome that will increase the cost of the overall package (over and above what has already been agreed with the unions).

If any further improvements are sought which will drive up the cost of any agreement or workplace determination, other significant cost items which the Company was otherwise prepared to agree to, will also be at issue. Without limitation, the Company's position on Training Pilot allowances, the number of RDOs and the rostering of and utilisation of Available Days would also need to be considered. Please contact me if you wish to discuss this matter further.

• [63] At 2.27PM (AWST) on 2 February 2024, Network wrote to the TWU and AIPA in response to their correspondence, in which it informed AIPA and the TWU that five cost items were now 'unagreed' for the purpose of a workplace determination.[57] The letter sent by email, for the most part mirrored that sent to AFAP of the same date, albeit the letter to the TWU and AIPA also included:

In addition, the TWU emailed me on 1 February 2024 on three issues raised by TWU members that they 'would like to see addressed'. In respect of item 1 and 2 it is clear these items would also result in a significant cost up and/or inflexibility for the Company.

Similarly, AIPA's email to me today identified two issues it considered needed to be addressed to "get the proposed EA over the line". Again, the two issues would result in significant increased cost, and cannot be agreed to.[58]

• [64] At 3.09PM (AWST) on 2 February 2024, AFAP provided Network with notice of protected industrial action in the form of a stoppage of all work for 24 hours, commencing at 00.01AM on 8 February 2024. The stoppage occurred as notified.[59]

• [65] On 5 February 2024, Network filed this application, and the parties subsequently participated in a conference before Binet DP on 9 February 2024.[60]

• [66] On 8 February 2024, AFAP provided Network with notice of protected industrial action in the form of a stoppage of all work for 24 hours, commencing at 00.01AM (AWST) on 14 February 2024. The stoppage occurred as notified.[61]

• [67] On 9 February 2024, AFAP provided Network with notice of protected industrial action in the form of a stoppage of all work for 24 hours, commencing at 00.01AM (AWST) on 15 February 2024. The stoppage occurred as notified.[62]

• [68] On 12 February 2024, AFAP provided Network with notice of protected industrial action in the form of a stoppage of all work for 24 hours, commencing at 00.01AM (AWST) on 16 February 2024. The stoppage occurred as notified.[63]

• [69] On 13 February 2024, AFAP provided Network with three separate notices of protected industrial action in the form of stoppages of all work for 24 hours, commencing at:

a) 00.01AM (AWST) on 17 February 2024;

b) 00.01AM (AWST) on 18 February 2024; and

• c) 00.01AM (AWST) on 19 February 2024.[64]

• [70] The stoppages on 17, 18 and 19 February 2024 occurred as notified.[65]

• [71] On 16 February 2024, AFAP provided Network with notice of protected industrial action in the form of a stoppage of all work for 24 hours, commencing at 00.01AM (AWST) on 22 February 2024.[66]

• [72] On 19 February 2024, AFAP provided Network with three separate notices of protected industrial action in the form of stoppages of all work for 24 hours, commencing at:

a) 00.01AM (AWST) on 23 February 2024;

b) 00.01AM (AWST) on 24 February 2024; and

• c) 00.01AM (AWST) on 25 February 2024.[67]

• [73] On 21 February 2024, the AFAP cancelled the notified industrial action for 22 to 25 February 2024, because of an incoming weather event within Western Australia.[68]

• [74] On 22 February 2024, AFAP provided Network with notice of protected industrial action in the form of a stoppage of all work for 24 hours, commencing at 00.01AM (AWST) on 28 February 2024.[69]

• [75] Captain Bartlett assumed the role of General Manager Flight Operations and Chief Pilot with Network in July 2022. Prior to that he had held the position of Head of Flight Operations for Virgin Australia Regional Airlines, from May 2018 until July 2022.[70]

• [76] Captain Bartlett explained that Network's FIFO service operates in respect of certain routes, many of which are to remote mining sites and which are serviced by Network's fleet of Airbus A320-200 and Fokker 100 aircraft.[71] The Boeing 737-800, an aircraft that forms part of the Qantas group fleet, is unable to service these sites.

• [77] Captain Bartlett confirmed that between September 2022 and 27 March 2023, there were ten bargaining meetings, each of which he attended in addition to three other representatives of Network, four representatives of AFAP and three representatives from each of the TWU and AIPA.[72]

• [78] Captain Bartlett said, based on public reports and the results of the protected action ballot, AFAP appeared to have approximately 85% of the membership of the pilot group.[73]

• [79] Expanding first upon the events of 15 June 2023, when AFAP advised Network it would no longer be recommending the proposed deal after having completed a survey of its membership,[74] Captain Bartlett said that AFAP had given reasons for its position.[75] Those reasons were a change in certain circumstances, including Qantas Group's profit announcement, recent modern award increases and an increasing member base. AFAP advised Captain Bartlett that 92% of members who had participated in the survey found the proposed agreement unacceptable.[76]

• [80] Come 28 July 2023, AFAP provided Network with what Captain Bartlett described as a substantially revised position with respect to its claims for a proposed agreement.[77] The revised claim was, according to Captain Bartlett, on radically different terms and conditions from the in-principle position that had been reached on 27 March 2023.[78]

• [81] The presage of the revised claim included the following extracts:

During this time, union density and vocalism have surged. Network Aviation pilots find themselves in a considerably disadvantaged financial position compared to the wider market and award minimums. Moreover, the absence of standard job security provisions like seniority clauses has significantly diminished Network Aviation's appeal as a career option, as indicated by pilot feedback.

Based on fresh feedback, an evaluation of the pilot market, and an assessment of company growth, it is imperative for the combined unions to propose an Enterprise Agreement that aligns with the pilots' needs within a company that has more than doubled in size and continues to expand. Pilot feedback emphasizes the necessity to establish market rates within Australia and implement Qantas Group clauses to bring Network Aviation up to the minimum market standards. Pilots demand industrial growth that matches the significant company growth witnessed and expected in all other aspects.

The severity of the poor conditions has become evident, leading to a substantial increase in union membership and density. However, there remains a noticeable disconnect between the feedback received by the unions and any responsive movement from the company.

The pilots have unequivocally mandated the unions to pursue significant industrial improvements at Network Aviation. Furthermore, the pilots have made it explicitly clear that if an acceptable agreement is not presented, they demand the unions file a FairWork application for Protected Industrial Action.

The following areas have been highlighted in pilot feedback as requiring improvement:

• Salaries
• Daily Travelling Allowance
• Allowances
• Rostered Days Off (RDO)
• RDO protections
• Roster Protections
• Productivity
• Company Incentive Payments
• Seniority
• Accommodation Standards

• [82] Each of the claims in the revised position are summarised and addressed individually, starting first with salaries.

• [83] AFAP outlined a commencement pay table for the proposed agreement that sought to achieve the following:

1. Establish the lowest paid pilot at a rate 5% higher than the award.
2. Apply already established proportions of 61.538% of the captain's wage for a first officer.
3. Apply already established proportions of a 10.88% increase from the F100 wage to the A320 wage.

• [84] In addition to establishing the above 'norms', AFAP proposed the inclusion of an industry-standard yearly loyalty increment of 1% in exchange for the current LB1 and LB2 structure. The tables, which would come into effect from the proposed agreement's operation, also allowed for 3% annual increases to be implemented each October:

• [85] The revised position included a daily travelling allowance. AFAP stated that pilot feedback had emphasised the need for improvements in this area given the higher duty hours to flight hours ratio experienced at Network. The revised position sought the following in the proposed agreement:

1. Captains will receive DTA calculated in accordance with Table 3 of the ATO reasonable travel and meal allowance expense amounts, at a rate of $8.26 for each hour or part hour calculated from sign-on to sign-off at the pilot's base.
2. First Officers will receive DTA calculated in accordance with Table 2 of the ATO reasonable travel and meal allowance expense amounts, at a rate of $7.23 for each hour or part hour calculated from sign-on to sign-off at the pilot's base.

• [86] AFAP provided an example of the daily travelling allowance noting that a 10-hour shift would provide a remuneration of $82.60 for a captain and $72.30 for a first officer. If, however, the shift included a layover, extending the total duration to 72 hours, the remuneration would be $594.72 for a captain and $520.56 for a first officer.

• [87] In addition to a daily travelling allowance, claims were made regarding allowances in general. AFAP identified that existing allowances were inadequate and had declined in real value. AFAP highlighted the inadequacy of the manual process for completing allowance forms and the need for an automatic system, noting that if Network allocated the responsibility of processing allowances to pilots, then an additional allocation of 15 minutes at pilot sign-off should be provided.

• [88] Regarding an allowance for working on a day off (Incentive Pay Day or IPD) it was, said AFAP, ineffective and inefficient. According to AFAP, pilots had proposed adopting a solution already utilised within the Qantas Group for an identical aircraft, such that when a pilot agrees to work on a day off, the following compensation would be provided:

a) a pilot's day rate, calculated as salary divided by 231; and

b) the greater amount of either the pilot's day rate (calculated as salary divided by 231) or the credit hours applicable (hourly rate calculated as salary divided by 787).

• [89] AFAP advanced that the current additional hour payment was the lowest in the industry and therefore, the pilots had adopted a formula utilised by identical equipment within the Qantas Group - that is, the pilot's salary divided by 787. Further, the additional hourly payment would be applicable to all duties, including simulator sessions, paxing duties and ground courses. Additionally, in the case of reserve activation, a minimum credit of four hours would be provided. To ensure a more equitable approach to overtime compensation, the overtime threshold will be reduced to 59 hours, reflecting the need for improved working conditions and fair remuneration for pilots.

• [90] According to AFAP, pilots strongly mandated a minimum of 10 RDOs as an industry standard, noting that it was imperative that pilots operating identical or nearly identical equipment within the Qantas Group receive this entitlement, and that Network must follow suit. The definition of RDO would expand to encompass a period starting from 10:00PM on the day prior to the RDO and ending at 06:00AM on the day following the RDO; hence prioritising pilot well-being.

• [91] A protection of the pilots' rosters was also sought. This protection was articulated such that 'within plus or minus two hours from Initial Roster Release to 24 hours prior or final sign off prior, whichever comes first'.

• [92] In respect of company incentive payments the pilots pressed that the calculation for the incentive payment would be aligned with the Qantas Group pilot agreements and as such would be based on the following:

1. the pilots' hourly rate of pay at the end of the financial year to which the bonus relates;
2. multiplied by the Manager Incentive Plan Scorecard Outcome applicable to Executives in the Qantas Domestic Segment;
3. multiplied by the bonus rate of 6%; and
4. multiplied by the number of credited hours pay received by the pilot in respect of the 26 fortnightly pay periods starting from the first full pay period commencing on or after July 1 in the financial year to which the Company Incentive Payment relates.

• [93] In respect of accommodation standards, in cases where pilots were unable to be accommodated in four star or alternative suitable accommodation, a hard-lying allowance of $250 would be required to compensate for the inconvenience caused. However, if a pilot chose to obtain their own accommodation and notified Network at least 48 hours prior to the scheduled duty, an own accommodation allowance of $120 would be applicable.

• [94] Claims also included a seniority system to guarantee that current pilots received priority in their placement onto new aircraft and that simulator sessions would be considered 'Flight Duty Periods' for rostering and fatigue management purposes. Regarding training, the pilots observed the absence of training salaries in the 2016 Agreement and pressed for the following percentage increases on current practice fixed amounts:

1. Simulator Check Captain (23%);
2. Line Check Captain (21%);
3. Line Training Instructor (17%); and
4. Simulator Instructor (11.5%).

• [95] What were referred to as 'standard market clauses' found in a majority of pilot agreements, were also considered essential items that demanded negotiation and inclusion in the proposed agreement. Those items included:

1. Accessing personal records;
2. Payment on Workers Compensation;
3. Parking at the Airport;
4. Loss of Baggage;
5. Reimbursement of Claims timeline;
6. Maximum Standby Periods Published;
7. Gold Days;
8. Delay into a Day off conditions;
9. Sign on and Sign off provisions;
10. Coverage of Enterprise Agreement;
11. Duty Travel Methodology;
12. Career Progression;
13. Clarification of Transport; and
14. Ground duties, tech pilot and other higher duties.

• [96] On 25 August 2023, Network circulated its proposed agreement. On 29 August 2023, the Commission made a protected action ballot order (AFAP having filed an application on 25 August 2023) and on 27 August 2023, Captain Bartlett said he had a telephone call with Mr Aikens from AFAP. Captain Bartlett's recollection of the call is as follows:

1. I asked for confirmation that the AFAP had sought feedback regarding the latest version of the Proposed Agreement.

1. Mr Aikens said that no poll or survey had been undertaken and that he was relying on opinions of AFAP representatives.

1. I said to Mr Aikens that Network Aviation remained open to further negotiations and wanted to understand whether the AFAP's log of claims remained the 'minimum position or whether the AFAP could detail any narrower specific areas or items to be addressed.

1. Mr Aikens said to me that he would raise the matter and come back the next day (when voting was due to open).

• e. I said that Network Aviation was open to further negotiations (notwithstanding that the Proposed Agreement had been put out to ballot) because I considered that the support of the AFAP was crucial in reaching agreement with the pilot group (with its vast majority of the pilot group as members).[79]

• [97] After the call with Mr Aikens, Captain Bartlett postponed the vote to allow additional time for AFAP to consider its position. Captain Bartlett said AFAP appeared to be open for further discussions and so he subsequently advised the pilots by email that the vote would be postponed.[80]

• [98] Captain Bartlett said on 28 September 2023, he was informed by Mr Aikens that AFAP would not be providing any specific areas or items of concern and that AFAP was not prepared to meet and negotiate unless Network unilaterally and without further discussion provided a 'substantially better offer'.[81]

• [99] Later in the day on 28 September 2023, Mr Aikens is said to have advised Captain Bartlett by phone that AFAP would consider a suspension of potential protected industrial action (on the part of AFAP), if Network provided a written proposal to significantly address the claims of AFAP in the revised claim dated 28 July 2023.

• [100] On 28 September 2023, AFAP provided Network with a notice of protected industrial action and Captain Bartlett emailed the pilots advising, amongst other things, that if the vote for the proposed agreement was unsuccessful, Network's position was that all agreed terms would be unagreed and bargaining would recommence from a 'clean sheet position with no items being agreed from that point onwards'.[82]

• [101] Mr Bartlett acknowledged that the proposed agreement was not supported by AFAP or AIPA's Committee of Management and was not voted up on 12 October 2023.[83]

• [102] On 3 October 2024, Captain Bartlett contacted Mr Aikens by phone to discuss what he considered to be a current impasse. Mr Aikens subsequently advised Captain Bartlett by email that AFAP was prepared to meet the following week, however the planned 24 hour stoppage on 4 October would proceed.[84]

• [103] At 2:41PM on 4 October 2024, Captain Bartlett sent an email to all pilots in relation to the stoppage. In the email he stated, among other things:

To be clear, while we respect AFAP members' right to take industrial action, today's stop work action, and the potential for more industrial action, has not and will not change our approach to this EA.

• [104] Captain Bartlett said that in relation to a bargaining meeting that AFAP had proposed for the following week, he also stated in the email:

We've also told the AFAP that for the meeting to be useful, it will need to be held on the understanding that:

• · If the vote on the proposed EA is unsuccessful, the AFAP needs to show willingness to move from its previous position that we simply can't agree to;

• · Network can't agree to any further overall cost increases from the current proposed EA; and

• · If the vote on the proposed EA is unsuccessful, we may be open to 're-cutting' the current deal with no overall cost increase.[85]

• [105] Captain Bartlett said that on 11 October 2023, Network met with AFAP.[86] Captain Bartlett further said that in the meeting, AFAP maintained its 28 July 2023 log of claims as the same 'minimum position', which involved material additional cost and inflexibility, and showed no sign of movement nor any proposal to re-cut the current deal to meet some of AFAP's claims without increasing the overall cost to Network.[87] Captain Bartlett said he informed Mr Aikens that AFAP needed to be more precise about what specific claims needed to be addressed, and that AFAP was asking Network to negotiate with itself.[88] Captain Bartlett recalls that Mr Aikens responded with words to the effect that the AFAP 'just wanted a better deal' and he would not identify with precision what needed to be included in the 'better deal'.[89]

• [106] Captain Bartlett said that he had previously made clear that changes to the current deal may be able to be accommodated provided that the overall cost did not increase.[90] He recalled that in the meeting one of the Network attendees said that Network was working within a certain cost envelope that contained a certain amount of cards, and whilst the company could discuss shuffling the cards around, it could not add cards to the deck.[91]

• [107] Conferences pursuant to s 240 of the Act were held in October 2023, with Captain Bartlett recounting that the issues raised by the Unions during the s 240 process included, but were not limited to, remuneration (including AFAP's claims for higher allowance rates for overtime and working on a rostered day off, its claim for a DHA, and an incentive payment), rostering protections (e.g. AFAP's claim for no 4.00AM starts after days off, and its claim regarding the number of days off in a roster period), accommodation standards and the promotion and selection process for pilots.

• [108] Captain Bartlett said on 14 November 2023, he received an email from Ms Gubbay-Nelmes of AIPA advising that on the same day, the AIPA Committee of Management passed a motion to endorse the proposed agreement.[92]

• [109] On 29 November 2023, Network made a further request for the pilots to approve the proposed agreement, consistent with the in-principle agreement reached with the Unions. Each of the Unions endorsed a 'yes' vote for the proposed agreement from their respective members.

• [110] Captain Bartlett gave evidence that by the time of the ballot, pilots had ceased to be eligible for the 'Record Results Bonus' or the 'Recovery Boost payment' under the conditions that applied to all Qantas Group employees.[93] Captain Bartlett noted that had the prior proposed agreement been approved in October, the pilots would have received these two payments. The first, for not engaging inaction harmful to the Qantas Group or any Qantas Group Company ($2000.00) and the second for having an agreement approved within nine months of bargaining having been commenced ($5000.00).

• [111] An agreement was not made and following the ballot, Captain Bartlett said he reached out to the Unions to seek their views to understand why the ballot had not succeeded.[94] Captain Bartlett said he attended a meeting with the bargaining representatives on 15 December 2023 to discuss whether any changes to the proposed agreement could be accommodated in order to try and move toward another ballot as soon as possible. Captain Bartlett described having again given a caution in the meeting that any changes would again need to be within the existing cost envelope.[95]

• [112] Describing the meeting as a 'think tank' where things at times got hostile, Captain Bartlett observed that the Unions did not have a common position on what it would take to get a 'yes' vote.[96] However, he said that AFAP proposed replacing a newly introduced FIFO Operations Allowance with a DHA.[97] Following the meeting, minor changes were made to the proposed agreement, which included providing a DHA instead of the FIFO Operations Allowance, and providing an ability to opt in or out of airport duty, and clarity around 'A day' conversion. Captain Bartlett said that in return Network was able to introduce a reduced base salary for 'low experience' first officers that applied until the first officer reached 1500 flying hours or three years' service.

• [113] Captain Bartlett noted that on 21 December 2023 he sent a communication to the pilots confirming that further adjustments had been made to reshape the proposed agreement[98] and on that same day, Mr Aikens confirmed that AFAP endorsed the proposed agreement saying that it would be advocating for its members to vote yes in the upcoming ballot.[99] Captain Bartlett noted that on that same day, AFAP provided an update to its members which set out the following:

EA Update - Confirmation of In-Principle Agreement - New Proposals Warrant YES Vote

Further to our brief at the end of last week, we can now confirm the additional factors that were agreed between the parties during negotiations has now enabled your negotiating team to formally provide in-principle agreement to the company. We understand documentation is being circulated this week from the Company, with balloting to occur early in the new year. These changes are significant and extremely positive for the pilot group and your negotiating team are urging all members to review the details below and vote yes when the ballot occurs in the new year.

• Replacement of FIFO allowance with the Duty Hour Allowance (DHA) of Capt: $10.93 and FO: $7.11 per hour. Offset by a "low/junior experience" salary rate where the pilot enters the main salary scale at the sooner of 1500 hours or 3 years in Network.
• DHA to apply to all duties including for day stays (but not overnights), i.e. Duty Hours are defined as the period between sign-on and sign-off in any port on any day.
• On exiting the "low/junior experience" salary (>1500 hours), commence at loyalty rate based on DOJ with Network Aviation.
• Ability to opt in/out of Airport Duty (once every 12 months)
• Removal of 8 week notice period. To remain as 4 weeks, as per the Air Pilots Award.
• Explicit statement that A days cannot be converted to a reserve period.
• Commence negotiations 12 months before EA expiry.
• At 5 hours from the end of an RA period, no duty can be assigned, unless by agreement (Company to review 5-hour timeframe against shortest duty in current operation)
• Company will endeavour to roster duties (over a roster period) equitably between the crew. Which will be reviewed by the roster working group.
• Redundancy - wording to reflect strict reverse date of joining.
• Clause 20.8 to rename from 'Reserve Duties' to 'Reserve Periods'.
• The Company will endeavour to implement automation of allowances that require a claim process within life of EA
• Q & A document to include examples around reserve periods and sign-on after an RDO(s)

• A new higher tier overtime payment for if/when a pilot exceeds an overtime threshold of 75 hours. The higher rate to be $155 (FO) and $250 (Capt) on the Fokker and $170 (FO) and $278 (Capt) on the Airbus.

In particularly your negotiating team had been pressing for a DHA payment since the outset of negotiations and its inclusion is a significant improvement for the following reasons:

• As a wage related allowance it attracts superannuation, it is payable for all duties including sim, office and ground duties and paxing. It is pro-rated for each minute worked.
• It increases in line with annual salary increases.
• The pilot retains the meal and overnight allowances currently applicable as well.
• For example based on the current duty average of 90 hours per 28 day roster the following DHA would be paid per annum: Capt - $12,788 FO - $8318

Based on the highest duty currently worked per 28 day roster (160 hours) the following DHA would be paid per annum: Capt - $22, 734 FO - $14,788

As another example if a pilot worked an average of 4x7 hour duties per week, working 45 weeks in a year would total nearly $9,000 for an FO and $13,800 for a Captain.

To achieve what was proposed under the FIFO allowance ($7500 or $4875) the pilot would only need to average just under 55 hours duty per 28 day roster period.

In addition the pilot is protected with the higher rate overtime threshold should more efficient rostering and longer duties result in the overtime threshold of 75 being reached (proportionally adjusted for annual leave). The higher rate being an 80% increase to the hourly rate paid when exceeding 59 hours.

Due to the cost of the DHA being far higher than the FIFO allowance the company will introduce a low/junior experience salary for those joining Network with less than 1500 hours experience (which is also part of the Sunstate and Eastern agreements where they receive the DHA). Movement to the main salary scale will be on achieving 1500 or three years whichever is achieved first...

On the basis that the long sort-after DHA has now been agreed coupled with the higher overtime rate for over 75 hours worked, this provides your negotiating team with the firm belief that the proposed EA warrants every member to vote and vote yes....[100]

• [114] In addition, to having heard from unidentified pilots that some pilots were discussing a process of voting 'no' to extract more (presumedly benefits) from Network, Captain Bartlett gave evidence that Mr Rousset, a TWU delegate, informed him between the second and third votes, feedback had been provided to him to the effect that the crew were voting 'no' on the basis of seeking to extend negotiations to achieve further improvement.[101]

• [115] Captain Bartlett said that following a further unsuccessful ballot, he again contacted each of the Unions to seek to understand why they considered the vote had failed.[102] In the period between 8 January 2024 and 23 January 2024, Captain Bartlett said he spoke to Mr Aikens who advised he was unable to indicate why the vote did not get up, and to the effect that he did not understand the result because he thought it would be successful.[103] According to Captain Bartlett, Mr Aiken assured that AFAP would seek feedback from its members.[104]

• [116] Captain Bartlett said he had similarly held conversations with Mr Nell, Industrial Officer of the TWU, and separately with Mr Tony Lucas and Mr Cuming, Pilot Representative of AIPA, and they too expressed not understanding why the vote went down and that they would speak to members to understand why.[105]

• [117] It was Captain Bartlett's evidence that he was informed by Mr Aikens that a survey had been conducted of AFAP members but responses outnumbered the members of AFAP, so a second survey would be conducted.[106]

• [118] On 2 February 2024, Mr Aikens advised Captain Bartlett that he had seen Captain Bartlett's letter of 2 February 2024[107] and that he had just sent Captain Bartlett a notification of protected industrial action.[108] Captain Bartlett said that when asked if that was necessary, Mr Aiken said, 'this is all we have left to do' (presumedly in reference to taking industrial action).[109]

• [119] Captain Bartlett said that on 3 February 2024 he attempted to contact each of Mr Walmsley, Mr Maughan and Mr Mapley (the AFAP delegates) by telephone. Mr Mapley and Mr Maughan did not answer or return his call, although Mr Walmsley responded via SMS indicating he would be available in the afternoon. At 12:35PM Captain Bartlett spoke to Mr Walmsley. Captain Bartlett said that they discussed a number of the items raised in AFAP's email of 23 January 2024, however following that phone call he was no clearer on the specifics of what AFAP's position was or why it had notified industrial action.[110]

• [120] Captain Bartlett said that on 9 February 2024, the parties attended a conference before Binet DP and Network made clear that it was prepared to discuss the issues raised by the Unions in their emails of 23 January 2024 (AFAP), 1 February 2024 (TWU) and 2 February 2024 (AIPA), provided that any movement by Network would need to be offset by changes to other terms so that overall cost to Network did not increase, and that no further protected industrial action occurred. Captain Bartlett noted that the conference was unproductive.[111]

• [121] At the time Captain Bartlett made his witness statement, in addition to a 24 hour stoppage on 4 October 2023, AFAP members had participated in 24 hour stoppages of all work on each of 8 February and 14 to 19 February 2024 inclusive, with a further two 24 hour stoppages notified for 28 and 29 February 2024.[112]

• [122] Bargaining for the proposed agreement had, according to Mr Bartlett, delivered significant improved benefits for the pilots above the current conditions of the 2016 Agreement.[113] These included:

1. salary increases (included estimated DHA) that averaged (across fleet and classification level) 23% on commencement. The increases offered were:

1. providing pilots with backpay from the first full pay period on or after 15 October 2022 (being valued at an approximate range of $8,300 for an entry level A320 First Officer to $27,800 for a year 10 A320 Captain);

1. introducing a limitation on the maximum number of reserve periods (to seven) in a roster period, where the 2016 Agreement provides no limitation. A reserve period is a period where pilots are required to be available and contactable for duties but are not performing duties;

1. changing to a minimum of 4 paired days off along with a minimum of 9 days off per 28 day roster period (increases from the 2016 Agreement);

1. introducing a documented selection and promotion process that provides increased transparency in the career advancement process;

1. an improved accommodation selection process with an agreed list of accommodation at non-capital city ports;

1. introducing a higher tier additional hour payment so that once pilots exceed 75 flying hours in a roster period they are paid an additional hourly rate from $156 for a First Officer and $250 for a Captain;

1. reducing the number of hours a pilot needs to fly before being paid an additional hourly payment from 65 hours to 59 hours per roster period;

1. providing an ability for pilots to opt in/out of airport duty once every 12 months; and

1. introducing a DHA for every hour worked in the period between sign on and sign off in any port on any day (but not overnights) at the rate of $7.11 for a First Officer and $10.93 for a Captain.

• [123] Captain Bartlett said that the salary increases (including estimated DHA) offered in the proposed agreement reflected a 23% uplift from the 2016 Agreement.[114] In addition to increased salaries and new allowances (such as DHA), there were increases to current allowances. There were also new terms that limit operational flexibility, such as increasing the number of days off for pilots.[115]

• [124] It was Captain Bartlett's view that the terms offered to Network pilots on an overall basis, were more generous than those afforded to pilots employed by Network's biggest competitor, Virgin Australia Regional Airlines.[116]

• [125] Captain Bartlett continued by noting that Network's services and operations were materially different to those of other operators including those in the Qantas Group (such as Qantas and Jetstar).[117] Captain Bartlett referred to Network being centred in Perth, whereas other operators had a much broader footprint around Australia, and mainline pilots fly those routes. Whilst those mainline pilots might fly to destinations also serviced by Network, they provided a much broader range of flying across Australia and overseas.[118] It was, said Captain Bartlett, imperative that the terms and conditions of employment for Network pilots reflected both the nature of the operation and the flying that they perform.[119]

• [126] By way of further example regarding the difference between the flying undertaken by Network pilots and pilots in other parts of the Qantas Group (and its competitors), Captain Bartlett referred to the Network pilots:

a) typically flying early mornings and afternoons;

b) undertaking minimal 'back of clock' flying (i.e. late night/early morning flying);

c) undertaking minimal overnighting;

d) having shorter flight sectors (typically flying 2 sectors with lower average flight times a day, and normally no more than 4). Pilots working for other operators could fly more hours largely due to the sector lengths and pairings applied to a more complex route network; and

e) having lower average annual flight hours. As a result of the lower flight hours, the hourly cost is substantially higher on a per hour rate (because salaries are paid on fixed basis).

• [127] Captain Bartlett referred to his email to pilots dated 2 October 2023, noting that AFAP's claims reflected 'cherry picking' the best of other conditions in Qantas Group industrial instruments which did not reflect Network's operations. Captain Bartlett expressed that such conditions could not and would not be agreed to. For example, AFAP's claims included starting at 6.00AM after a day off, and the same duty hours, number of rostered days off and overtime triggers as other Qantas Group pilots.[120] These claims were not suitable for Network operations, or the nature of its flying, according to Captain Bartlett.[121] Captain Bartlett further noted that if agreed to (as a package) such claims would result in an unsustainable cost base.[122]

• [128] Captain Bartlett expressed the view that the need to maintain a sustainable cost base was a matter he had raised with pilots (including in his update of 2 October 2023). Captain Bartlett opined that further increases to the cost of any agreement would risk making the airline uncompetitive because unsustainable costs would mean that Network was unable to submit competitive tenders. It also presented a challenge to Network's ability to grow the business and provide job opportunities, said Captain Bartlett.[123]

• [129] In respect to there being no reasonable prospect of reaching an agreement, Captain Bartlett gave several reasons why Network considered this to be the case.

• [130] First, he described there having been extensive bargaining dating back to before the COVID-19 pandemic, but substantially taking place on and from September 2022. Second, he noted that notwithstanding having held numerous meetings involving all bargaining representatives and Network having made a number of significant concessions, in the last vote, the pilots demonstrated an even greater reluctance to accept the proposed agreement compared to the second vote. This was the case, despite Network adjusting the offer from the second ballot to accommodate issues raised by AFAP[124] and the last two ballots having occurred with the support of AFAP, the TWU and the delegates of AIPA.[125]

• [131] Third, Captain Bartlett said that the feedback conveyed to him following the second ballot was that the pilots' ineligibility for the 'Record Results Bonus' or the 'Recovery Boost' payment was a factor in the 'no vote'.[126] However, the conditions attaching to these payments were consistent across the Qantas Group and eligibility for the payments could not and would not be reinstated.

• [132] Fourth, Captain Bartlett explained that the hard-won consensus between Network and the Unions on the last two ballots had occurred following constructive engagement between the parties and the Commission during the s 240 process.[127] Captain Bartlett said that the pilots were aware that this process had occurred, and that it led to an agreed position between Network and the Unions.[128]

• [133] Fifth, Captain Bartlett referred to the email from Mr Aikens dated 23 January 2024, which detailed seven issues raised by AFAP members as being 'crucial for potential endorsement'. Captain Bartlett observed that some of the issues had not been particularised in any way and since the email had been received, those issues had not been further particularised.[129] Captain Bartlett also expressed that it was unclear whether movement by Network on one, more, or all of the seven issues, would in fact lead to a favourable vote by AFAP members.[130]

• [134] Sixth, Captain Bartlett further pointed out that the issues identified in the email dated 23 January 2024, were also inconsistent with the in-principle position reached (being the second in-principle agreement that the AFAP had walked away from) and would involve significant cost up and/or inflexibility for Network. Captain Bartlett stated that 'they', presumedly the seven issues, would not be agreed to under any circumstances and as such Network had made that clear to AFAP (and the other Unions), and had maintained that position despite, as at the date of Mr Barrett's statement, seven 24 hour stoppages of all work being taken by AFAP members within the last three weeks (and a further six notified).

• [135] Work stoppages included six consecutive days from 14 February to 19 February 2024 and whilst it was intended that there would be a further four consecutive days of work stoppages from 22 February to 25 February 2024, that action was cancelled on account of a weather event. Captain Bartlett said that the notification of notices on 22 February and 23 February 2024 of 24 hour stoppages on 28 February and 29 February 2024, indicated that AFAP members intended to continue participating in this action.[131]

• [136] Captain Bartlett filed a further witness statement on 11 March 2024, in reply to Unions' responses. Captain Bartlett confirmed that since providing his first witness statement, members of AFAP had engaged in further industrial action on 1 March, 4 March and 8 March 2024.[132] During that period of industrial action, 79 of 270 flights had been cancelled.[133]

• [137] On 8 March 2024, AFAP provided notice of 24 hour stoppages of all work on 14 March and 15 March 2024.[134]

• [138] In the latter part of the bargaining, a decision was made that Ms Rachel Yangoyan, Chief Executive Officer of QantasLink, would contact Mr Lutton of AFAP, with a view to establishing a more constructive channel of communication.[135] Captain Bartlett gave evidence that this approach had been adopted in response to a purported campaign by AFAP against him and other Network management.[136]

• [139] Captain Bartlett gave evidence that he had been informed by Ms Yangoyan and believed that in the week of 12 February 2024 she contacted Mr Lutton to inform him that Network would be holding a 'townhall' with the pilot group to discuss the current position and provide an opportunity to ask questions.[137] The holding of the townhall was agreed to and supported by AFAP executive.[138] However, on 18 February 2024, Captain Bartlett received a phone call from Mr Lutton in which Mr Lutton informed him that AFAP had changed its position and would be recommending that its members not attend. The townhall occurred on 19 February 2024, which Captain Bartlett attended.[139] He estimated that 10 pilots attended.[140]

• [140] Captain Bartlett said that he had been informed by Ms Yangoyan and believed that on 28 February 2024, she contacted Mr Lutton and advised him that Network would be putting the proposed agreement back out to ballot. Network elected to do so, as it had received feedback from pilots that they wished to have a further opportunity to vote on the proposed agreement that had been most recently rejected. On 28 February 2024 at 12.45PM (AWST), Captain Bartlett contacted Mr Nell to inform him of the company's intention regarding the further ballot.[141]

• [141] On 29 February 2024, Network put a proposed agreement to a further ballot of pilots (fourth ballot). It was the same proposed agreement that was put to the pilots on 22 December 2023. The ballot opened on 8 March 2024 and closed on 12 March 2024.[142]

• [142] The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Secure Jobs, Better Pay Act) repealed the former serious breach declaration provisions of the Act and replaced them with a new scheme of provisions relating to intractable bargaining declarations, with effect from 6 June 2023.[143]

• [143] This scheme is contained in Subdivision B of Division 8 of Part 2-4 of the Act. Section 234 of the Act deals with the circumstances in which an application for an intractable bargaining declaration may be made:

234 Applications for intractable bargaining declarations

(1) A bargaining representative for a proposed enterprise agreement, other than a greenfields agreement, may apply to the FWC for a declaration (an intractable bargaining declaration) under section 235 in relation to the agreement.

Note: The consequence of an intractable bargaining declaration being made in relation to the agreement is that the FWC may, in certain circumstances, make an intractable bargaining workplace determination under section 269 in relation to the agreement.

(2) An application for an intractable bargaining declaration must not be made in relation to a proposed multi‑enterprise agreement unless a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the agreement.

• [144] Section 235 of the Act provides the Commission with a discretionary power to make an intractable bargaining declaration, the content of such a declaration if made and its temporal operation. It states:

235 When the FWC may make an intractable bargaining declaration

(1) The FWC may make an intractable bargaining declaration in relation to a proposed enterprise agreement if:

(a) an application for the declaration has been made; and

(b) the FWC is satisfied of the matters set out in subsection (2); and

(c) it is after the end of the minimum bargaining period (see subsection (5)).

Matters of which the FWC must be satisfied before making an intractable bargaining declaration

(a) the FWC has dealt with the dispute about the agreement under section 240 and the applicant participated in the FWC's processes to deal with the dispute; and

(b) there is no reasonable prospect of agreement being reached if the FWC does not make the declaration; and

(c) it is reasonable in all the circumstances to make the declaration, taking into account the views of all the bargaining representatives for the agreement.

(b) the proposed enterprise agreement to which it relates; and

(c) any other matter prescribed by the procedural rules.

(a) comes into operation on the day it is made; and

(b) ceases to be in operation when each employer specified in the declaration is covered by an enterprise agreement or a workplace determination.

(5) The end of the minimum bargaining period in relation to a proposed enterprise agreement is:

(a) if one or more enterprise agreements (the existing agreements) apply to any of the employees that will be covered by the proposed agreement - the later of the following:

(i) the day that is 9 months after the nominal expiry date for that existing agreement, or the latest nominal expiry date for those existing agreements;

(ii) the day that is 9 months after the day bargaining starts, as worked out under subsection (6); or

(b) the day that is 9 months after the day bargaining starts, as worked out under subsection (6).

(6) For the purposes of subparagraph (5)(a)(ii) and paragraph (5)(b), the day bargaining starts for a proposed agreement is:

(a) if a supported bargaining authorisation or single interest employer authorisation is in operation in relation to the proposed agreement - the day that the authorisation first comes into operation; or

(b) otherwise - the notification time for the proposed agreement.

• [145] Section 235(1) confers upon the Commission a discretionary power to make an intractable bargaining declaration if each of the preconditions described in paragraphs (a), (b) and (c) are met. The precondition in s 235(1)(a) for an application for the declaration to have been made connotes a valid application that conforms with the requirements of s 234.[144] The requirement in s 235(1)(c) is that the 'minimum bargaining period', as defined in ss 235(5) and (6), has ended. This is essentially an issue of fact. In the context of single enterprise bargaining where an existing enterprise agreement(s) applies to any of the employees to be covered by the proposed agreement the subject of bargaining, the minimum bargaining period is the later of:

a) the day that is nine months after the nominal expiry date(s) of the existing agreement(s); or

b) the day that is nine months after the day that bargaining starts, being the 'notification time' for the proposed agreement.

• [146] The notification time for a proposed agreement is as set out in s 173(2). As was identified in Ventia Australia Pty Ltd v United Firefighters' Union of Australia,[145] because, under s 173(3), the issue of the NERR in respect of a single-enterprise agreement (other than a greenfields agreement) must occur not later than 14 days after the notification time for such an agreement, the fact that the NERR has been issued will in most conceivable circumstances be a reliable indicator that the notification time has already occurred.

• [147] The precondition in s 235(1)(b) requires the Commission to be 'satisfied' as to each of the matters in paragraphs (a)-(c) of s 235(2). The process by which a Tribunal does, or does not, reach a state of satisfaction about a prescribed matter involves the making of an evaluative judgment of a discretionary nature. The exercise of discretion involved will be wider where the prescribed matter is one of 'opinion or policy or taste' (as is the case with paragraphs (b) and (c) of s 235(2)) rather than one of 'objective fact' (paragraph (a)).[146]

• [148] Satisfaction as to s 235(2)(a) requires a finding of fact that the Commission has dealt with the dispute about the agreement under s 240 and the applicant for the intractable bargaining declaration has participated in the Commission's processes to deal with the dispute. Section 240 is a provision by which a bargaining representative for a proposed enterprise agreement may apply to the Commission for it to deal with a dispute about the agreement which the Commission for it to deal with a dispute about the agreement which the bargaining representatives are unable to resolve.

• [149] Section 235(2)(b) requires the Commission to make an evaluative judgment as to whether there is 'no reasonable prospect of agreement being reached' if an intractable bargaining declaration is not made. It has been said that 'No reasonable prospect' is obviously not the same as 'no prospect' in that it does not require a 'certain and concluded determination'[147] that an agreement cannot be reached if a declaration is not made but rather, on the ordinary meaning of the words used, requires an evaluative judgment that it is rationally improbable that an agreement will be reached.[148] Paragraph [846] of the Revised Explanatory Memorandum (REM) for the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 (SJBP Bill), which explains this provision, is consistent with this approach:

... This does not require the FWC to be satisfied that an agreement could never be reached but rather that the chance of the parties reaching agreement themselves is so unlikely that it could not be considered a reasonable chance. It is unlikely that the FWC would reach such a state of satisfaction unless the parties had been bargaining for an extended period and had exhausted all reasonable efforts to reach agreement, but the provision leaves it up to the FWC to determine, in all the circumstances, whether it is satisfied that there is no reasonable prospect of the parties reaching agreement if the FWC does not make the declaration. ...

1. Satisfaction in respect ofI235(2)(c) of the Act requires the Commission to make a further evaluative judgment, namely that it is reasonable in all the circumstances to make the declaration sought, taking into account the views of the bargaining representatives for the agreement. The 'reasonable in all the circumstances' criterion requires an assessment of what is 'agreeable to reason or sound judgment' in the context of the relevant matters and conditions accompanying the case.[149] The REM for the SJBP Bill give examples of potentially relevant circumstances as follows:[150]

This would provide scope for the FWC to, for example, consider the dispute in the context of the whole of the relationship of the parties, the history of the bargaining, the conduct of the parties, the prevailing economic conditions, and the bargaining environment.

• [151] The requirement to take into account the views of the bargaining representatives means that their views must be treated as a matter of significance, but not necessarily a determinative consideration, in the assessment of whether it is reasonable in all the circumstances to make the determination sought.[151]

• [152] Where the Commission is satisfied as to each of the matters in paragraphs (a)-(c) of s 235(1), it retains a residual discretion ('may make') as to whether an intractable bargaining declaration is actually made.

• [153] Where an intractable bargaining declaration is made pursuant to s 235, s. 35A confers upon the Commission the discretionary power to specify a 'post-declaration negotiating period':

(1) The FWC may, if it considers it appropriate to do so, specify in the declaration a period (the post‑declaration negotiating period) that:

(i) the day specified by the FWC in the declaration; or

(ii) any later day determined under subsection (2).

Note: The FWC cannot make an intractable bargaining workplace determination during any post‑declaration negotiating period (see section 269) but may still provide other assistance during the period, such as conciliation.

(2) The FWC may, if it considers it appropriate to do so and taking into account any views of the bargaining representatives, extend the period referred to in subsection (1) by determining a later day for the purposes of subparagraph (1)(b)(ii).

• [154] The REM explains that s 235A 'would allow the FWC to, when making an intractable bargaining declaration, specify a period after the making of the declaration for the parties to continue to negotiate with a view to reaching an enterprise agreement before the FWC proceeds to make a workplace determination'.[152]

• [155] It is noted that if the Commission makes an intractable bargaining declaration, s 269 of the Act requires a Full Bench of the Commission to make an 'intractable bargaining workplace determination' as quickly as possible after the end of the post-declaration negotiating period, if one is specified, or otherwise after making the declaration.

4.1 Has an application for the declaration been made

• [156] It is uncontroversial that Network has made a valid application under s 234 of the Act. As observed, it is a bargaining representative for the proposed agreement, and the application is made in relation to a single-enterprise agreement, not a multi-enterprise agreement.

• [157] It is common ground that Network is a bargaining representative for the proposed agreement and is therefore entitled to make an application for the Declaration under s 235 of the Act.

4.2 Is it after the end of the minimum bargaining period

• [158] An initial NERR was issued in 2019[153] and Network is said to have commenced bargaining with the Unions for a replacement agreement in that same year. Bargaining was paused due to the onset of the COVID-19 pandemic and the NERR was re-distributed on 5 August 2022[154] with bargaining recommencing on or around that time with the last bargaining meeting taking place in December 2023.

• [159] The end of the minimum bargaining period is the later of the day that is nine months after the nominal expiry date of the 2016 Agreement or the day that is nine months after the day bargaining starts.[155]

• [160] As the nominal expiry date of the 2016 Agreement was 31 October 2020[156] and the notification time for the proposed agreement was arguably no later than 2019, when Network

issued the NERR and was said to have commenced bargaining, the nominal expiry date is the later date for the purpose of s 235(5), and as such more than nine months have passed since that date.

• [161] If, however, I am wrong on this point with regard to the time when bargaining started and it is accepted to have started in respect of the proposed agreement in August to September 2022, it remains that more than nine months have passed since that date and I am therefore satisfied that in respect of s 235(1)(c) of the Act, it is after the end of the minimum bargaining period.

4.3 Has the Commission dealt with the dispute about the agreement under s 240, and has the applicant participated in the Commission's processes to deal with the dispute

• [162] The s 240 application was allocated to Binet DP. Several conferences were held before the Deputy President on the following dates: (a) 30 October 2023; and (b) 7 to 10 November 2023 (inclusive).[157]

• [163] Based on the material before me, I am satisfied that the conferences before the Deputy President have dealt generally with disputes arising from bargaining for the proposed agreement, and also with the specific dispute the circumstances of which have given rise to the present application.[158]

• [164] Whether a narrow or broad view is taken of 'the dispute' with which s 235(2)(a) is concerned,[159] I find that the requirement in s 235(2)(a) is satisfied.

4.4 Is there no reasonable prospect of agreement being reached if the Commission does not make the declaration

• [165] For the following reasons, I am satisfied that there is no reasonable prospect of an agreement being reached if the Commission does not make the declaration sought by Network.

• [166] Bargaining for the proposed agreement has been on foot since September 2022, with the parties actively bargaining for about 18 months.[160] During that period, there have been three iterations of the proposed agreement put to the vote, one of those iterations begin put to the vote on both 22 December 2023 and 8 March 2024.

• [167] With respect to the proposed agreements that have been put to the vote, those agreements have been proposed to the pilots in circumstances where there have been numerous bargaining meetings between Network and the Unions. On two occasions, that is in respect of the proposed agreement that went to the vote in the second ballot and that in the third, there had been endorsement by the Unions, with the exception of the third ballot where, whilst the AIPA did not endorse, it agreed to the proposed agreement being put to the vote.

• [168] It is uncontroversial that bargaining representatives play a central and important role in the agreement making scheme established by Part 2-4 of the Act, [161] in respect of bargaining for an agreement or the approval process once the agreement is approved. The Act places obligations on and grants privileges to a bargaining representative for a proposed agreement.[162]

• [169] The evidence before me is highly persuasive that a significant number of pilots within the relevant cohort are represented by AFAP, and that AFAP has, whether through the use of survey[163] or otherwise, sought to canvass the views of members in respect of the proposed agreements that have been put to the vote. The Unions have, in addition, taken an active role in communicating to their members their view on the proposed agreements. In this regard, I refer, by way of example, to the joint statement of Network and the Unions that was issued to the pilots on 10 November 2023 in respect of the second proposed agreement,[164] and AFAP's update to its members on 21 December 2023, which, in respect of the third proposed agreement, was unequivocal in its terms that the third proposed agreement warranted every member voting for 'yes'.[165]

• [170] It is in these circumstances that I find it reasonable for Network to have placed reliance on putting two proposed agreements to a vote, where there was an expression of endorsement by the Unions, particularly that of AFAP - again observing that a significant number of pilots are members of the aforementioned organisation.

• [171] Where the workforce is heavily unionised, an enquiry as to whether there is no reasonable prospect of an agreement being reached may be principally directed towards agreement as between the bargaining representatives, albeit acknowledging that no relevant agreement can be reached absent a majority employee vote. In this case, it is uncontroversial that in-principle agreements have been reached between employer and Unions, only to be thwarted at the ballot box. It is therefore unsurprising, that the relevant enquiry will be equally directed towards whether there is no reasonable prospect of agreement being reached as between the employer and the employees.

• [172] The question for the Commission is not whether it is impossible that agreement may be reached, in the sense of reaching a 'certain and concluded determination' on the matter.[166] Rather, satisfaction of s 235(2) requires that the Commission make 'an evaluative judgment that it is rationally improbable that an agreement will be reached'.[167]

• [173] The chronology of bargaining, as traced through this decision, demonstrates that the parties have been trying to reach an agreement for a significant period without success. During the last 12 months, the Commission has assisted the parties whether in the form of the s 448A conference, the s 240 conferences, and a latter conference conducted by Binet DP on 9 February 2024, when the application for a declaration was made, all to no avail.

• [174] On each occasion the proposed agreement has been put to the vote, it has been voted down, notwithstanding those occasions (second and third ballots) where the Unions proffered support for the proposed agreement and communicated the same to their members (save the exception already mentioned regarding the AIPA). On the third ballot, the 'no' vote was higher than it had been under the second ballot, despite changes have been made to the proposed agreement to address at least some of the matters raised by AFAP. Whilst the proposed agreement was put to the vote for a fourth time, given it reflected the content of the proposed agreement put to the vote on the third occasion, it is perhaps unremarkable that it did not garner majority support. What, however, has become evident within this bargaining history, is that since the second ballot, the continued bargaining has not brought the pilots and Network closer to an agreed position but has instead given rise to a situation where support of the agreements proposed, is repeatedly declining. This is notwithstanding, what I consider to be previous legitimate efforts by Network and the Unions to put forward a proposed agreement that would be palatable to the pilot group in respect of the proposed agreements put to the second and third ballot.

• [175] The parties have now reached a point, where the pilots seek one or more further improvements to the proposed agreement. As of 2 February 2024, AIPA expressed that its members sought ten RDOs and the removal of the tier 1 'Additional Hourly Payment', so that all hours flown in excess of 59 hours attract the higher tier 2 rate.[168] AIPA expressed the view that this was achievable for Network.[169] AFAP had identified seven areas which it said its membership had flagged as being crucial for a potential endorsement by the pilot group.[170] Those areas include a two hour sign on, no 4.00AM starts after days off, business class duty travel, DHA rate as other Qantas entities receive, increased overtime rate, 10 days off per roster period and a revised rostering appendix.[171] I find on the evidence that the pilots require one or more, but likely 'more', further improvements to the proposed agreement for there to be any prospect of agreement being reached, and it is apparent that members of AFAP within the pilot group are seeking employment conditions that are, in some respects, equivalent to that provided to pilots by otherwise Qantas entities, notwithstanding the difference between such operations, and notwithstanding that AFAP considered that the inclusion of the DHA payment a significant improvement in the proposed agreement - such that its inclusion amongst the other benefits warranted a 'yes' vote.[172]

• [176] According to Network, the claims sought by the Unions will add significant further cost to the overall proposal, for any proposed of agreement being reached. Network has stated on many occasions that it will not agree to further changes to the proposed agreement that result in increased overall cost,[173] or further inflexibility. Network has articulated its position that the pilots will either need to accept the terms of the proposed agreement as they were at the time of the third unsuccessful ballot, or approach bargaining on the basis of 're-cutting' those terms so as to not exceed the current overall cost.

• [177] I am satisfied that that an obdurate approach has been adopted, with no evidence adduced of either Network or AFAP (or the other Unions) compromising on their positions, or being prepared to compromise on their positions, which is indicative of an impasse. Against the backdrop of the bargaining meetings, proposed agreements going to the vote, and on-going communications between the parties, including communications between senior executives within both AFAP and Network, is a campaign of 24-hour stoppages of work against Network, as detailed in this decision. Such stoppages have clearly not had the desirous effect of Network changing its bargaining position, with the company staunchly maintaining that the financial benefits of the proposed agreement are generous and that the terms are either accepted or recut so as not to exceed the current overall cost. The campaign of stoppages has presumably had a financial impact on both the participating pilots and Network - but the campaign has not yielded a result where the parties have become closer toward a proposed agreement being reached. Other forms of protected industrial action are apparently not presently available to the AFAP and its members, but if significant rolling 24 hour stoppages do not prompt movement from Network (nor the pilots), I find it difficult to conceive that anything will.

• [178] Having considered all of the above circumstances, I am satisfied that bargaining has reached an impasse and am satisfied that there is no reasonable prospect of agreement being reached if the Commission does not make the declaration.

4.5 Is it reasonable in all the circumstances to make the declaration, taking into account the views of all bargaining representatives for the agreement

• [179] The circumstances in this case are perhaps somewhat unusual given the recent change in the position of the Unions. The TWU and AIPA accept that on the material Network will tender, being its witness statement and the agreed statement of facts, there is an adequate basis upon which the Commission can form the required state of satisfaction and the two Unions do not otherwise oppose the declaration being made. AFAP similarly does not oppose the declaration being made.

• [180] I am persuaded that there is an evident disjoint between the view of the Unions, particularly that of AFAP and that of their members, in respect of at least two of agreements proposed and put to the vote (second and third ballot). The industrial outlook of the Unions' members seems little swayed by, for example, unequivocal support of a proposed agreement by their own bargaining representative. In circumstances where the negotiation is between Network and the Unions, Network is, in these circumstances, predominately dependent on the Unions accurately portraying the view of its members and having some influence over the same. It should not be read that the Unions have not accurately advanced the view of their members throughout the bargaining, but the ineluctable finding is that the Unions, the AFAP in particular, has been unable to persuade a majority of members to vote for the second and third agreement notwithstanding urging their members to do so. Networks attempts to communicate directly with the pilots, whether through a 'townhall' or otherwise, have similarly failed to navigate toward agreement.

• [181] Network Aviation has been subjected to multiple instances of 24-hour stoppages and until the date of the hearing, there was no indication that the stoppages would cease. Based on the evidence before me, the protected industrial action has had significant impact on the flights scheduled by Network, therefore causing disruptions to it and the travelling public, including especially FIFO workers at remote mine sites in Western Australia. The financial impact of the stoppages will also have had a significant financial impact on the pilots who have engaged in it. Having established that there is no reasonable prospect of agreement being reached, it would appear to be in no one's interests for any further industrial action to occur. It is therefore reasonable in the circumstances to make the declaration.

4.6 Conclusion regarding an intractable bargaining declaration

• [182] All the preconditions for the making of an intractable bargaining declaration pursuant to s 235(1) are satisfied. In the exercise of my residual discretion, there is no matter which I can identify which would weigh against making a declaration.

• [183] Section 235A(1) of the Act provides that the Commission 'may, if it considers it appropriate to do so, specify in the declaration' under s 235(1) a 'post-declaration negotiating period' (PDNP). The specification of such a period is not mandatory: presumably recognising that before any PDNP is considered, the Commission has already reached a state of satisfaction that there is no reasonable prospect of agreement being reached.

• [184] Network's initial position was that in light of the impasse reached and the irreconcilability of the parties' positions, there was no utility in a PDNP. However, at hearing Network took what it referred to as a slightly different position than that expressed in its written submissions, providing a draft order that included a PDNP of 13 days. However, Network save expressing that it was content with a PDNP, elected not to elaborate any further on that point.

• [185] As noted, AFAP submitted that if the Commission were persuaded to make the declaration sought it agreed there ought to be a 13 day period PDNP and that such period was appropriate in all the circumstances.

• [186] Essentially, Network and AFAP are either content for a PDNP to be specified in the declaration or consider such specification appropriate. AIPA and the TWU were silent with respect to the draft order inclusive of the PDNP, albeit for their part held the subjective view that bargaining was not intractable.

• [187] Where there has been cooperation exhibited by Network and AFAP at arriving at a position that the inclusion of a PDNP is either appropriate or Network is content for it to be included in the declaration, I consider the specification of a PDNP period would be both appropriate and useful - for the purpose of giving the parties an opportunity to at least narrow their differences as to what matters will need to be arbitrated.

• [188] For the above reasons, the declaration will specify a post-declaration negotiating period of 13 days, concluding on 28 March 2024. Should the parties require any assistance from the Commission, requests are to be directed to the National Practice Lead for Bargaining.

• [189] An intractable bargaining declaration in relation to the proposed agreement which will specify a post-declaration negotiating period of 13 days is made on 15 March 2024. The declaration is made by a separate order published on 15 March 2024 and in accordance with s 235(4)(a) of the Act, will operate from the date it is made.

M Follett SC and M Garozzo of Counsel, instructed by Ashurst Australia, for Network

Y Bakri of Counsel, instructed by Slater and Gordon, for AFAP

[3] Ibid; Statement of Agreed Facts, [2] (SOAF).

[5] Statement of Evan Wayne Bartlett, [10] (Bartlett Statement).

[11] Reply Statement of Evan Wayne Bartlett, [6] (Bartlett Reply Statement).

[16] Bartlett Reply Statement (n 11) [2].

[108] Bartlett Statement (n 5) [55].

[111] Bartlett Reply Statement (n 11) [18].

[112] Bartlett Statement (n 5) [59].

[132] Bartlett Reply Statement (n 11) [2].

[143] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) Sch 1, Part 18.

[144] Application by United Workers' Union, Australian Education Union and Independent Education Union of Australia [2023] FWCFB 176 at [29].

[145] [2023] FWC 3041 (Ventia).

[146] Buck v Bavone [1976] HCA 24; (1976) 135 CLR 110, 118-119 (Gibbs J).

[147] Spencer v Commonwealth [2010] HCA 28, (2010) 241 CLR 118, [52] (Hayne, Crennan, Kiefel and Bell JJ) (Spencer).

[148] United Firefighters' Union of Australia v Fire Rescue Victoria [2023] FWCFB 180, [29] (UFU v FRV).

1. [149]Suncoast Scaffold Pty Ltd [2023] FWCFB 105, [17].
2. [150]Revised Explanatory Memorandum, Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022, [847] (REM).

[155] Fair Work Act 2009 (Cth), s 235(5).

[158] Bartlett Statement (n 5) [37].

[159] UFU v FRV (n 148) [28] and [40].

[161] Construction, Forestry, Mining and Energy Union v Collinsville Coal Operations Pty Limited [2014] FWCFB 7940, [16].

[165] Bartlett Statement (n 5) [46]; Annexure EB-11.

[166] UFU v FRV (n 148) [29], citing Spencer (n 147) [52].

[173] See for example, Bartlett Statement (n 5) [32], [33], [42], [49] and [57]; Annexures EB-4, EB-5, EB-6.

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