C.5 The request and subsequent events
34 On 20 August 2022, Mr Alley (the Head of Base Operations and Flight Operations for Qantas), wrote to Captain Lucas (President of the AIPA) making the request. Mr Alley's email had the subject line "A380 Recruitment" and was in the following terms:
With the confirmation of Project Sunrise and Project Winton flying, Flight Operations is forecasting a significant rise in the number of training courses needed to be completed over the next 4 years. In addition to the training requirements for Project Sunrise/ Winton, we are seeing A380 aircraft returning earlier than previously forecasted which is driving additional training requirements including into this training year and in circumstances where our training system is already operating at full capacity.
As part of the broader context, and by way of example, between FY23 and FY26 our models are forecasting that we will require more than 1,600 training courses. This is made up of ~1,200 type conversion courses and ~400 new recruit courses. This means our training system will be at maximum capacity throughout this period, and we are already having to utilise offshore training locations on the A330 and A380.
We therefore need to ensure our training and recruitment plans are efficient and do not unnecessarily increase the number of training courses or otherwise compromise our operations as we continue to ramp up our international operations. I am therefore writing to you seeking agreement under LHEA 19.1.2 to allocate new SOT's commencing employment this training year directly to the A380. In this regard, we are currently forecasting a requirement for 24 additional A380 Second Officers this training year, 20 of whom we would like to recruit directly to the A380. This request is based on the following operational considerations and constraints:
• As outlined above, our training pipeline is at maximum capacity to the extent that we are already training offshore on the A330 and A380. We therefore need to minimise any additional courses and training ripple. Training new recruits to the A330 /B787 only to release them to the A380 contributes to the ripple and adds additional courses.
• Our Second Officer categories are our most constrained and we cannot afford to be releasing Second Officers off the A330 and B787 in order to fill A380 Second Officer positions
• The A330 SO category is projected to be at maximum divisor within the next 6 months with a significant increase in A330 block hours over the NW season with new routes commencing (SYD-BLR, PER-JNB, SYD-ICN) plus existing ports reopening post COVID (HKG, HND, PVG). Release of A330 SOs to the A380 would seriously jeopardise the Company's capacity to operate the published schedule.
• Backfilling of additional A330 SOTs is not possible as the training system is congested with no spare capacity.
• We have invited A380 Second Officers on LWOP to return earlier than their current return date with a view to minimising additional recruitment to the A380, however of the 12 Second Officers we wrote to, only 1 volunteered to return early.
• Because of the faster than anticipated ramp up of international operations, the Company has made the decision to bring forward the return of an additional 3 x A380's this training year resulting in the need to bolster our A380 Second Officer establishment.
At this stage, we are proposing to directly allocate SOT's onto the A380 on courses commencing 11 October 2022.
(emphasis added)
35 On 22 August 2022, Captain Lucas and Mr Alley met. Captain Lucas told Mr Alley that the AIPA would request further information from Qantas to assist the AIPA in its consideration of the request. On the same day, Captain Lucas forwarded the 20 August email to various members of the AIPA's executive.
36 On 31 August 2022, Mr Alley sent a further email to Captain Lucas:
I refer to our email below and to the meeting with AIPA on 22 August.
At the meeting you indicated that AIPA would be requesting further information from Qantas in order to assist in its consideration of our request. To date no request for further information has been received. Noting that we are proposing to allocate SOT's to the A380 commencing from 11 October we ask that AIPA now provide us with a substantive response to our request. Should further information be required, we ask that this request be made as a matter of priority and by no later than Friday, 2 September.
37 On 2 September 2022, Captain Lucas responded to Mr Alley:
AIPA is in the process of considering your request for consent pursuant to clause 19.1.2 of the LHEA. To enable us to properly consider your request, please provide the following additional Information:
1. Training projections for the next 12 months
2. Training status of current 'previously stood down' A380 SOs and when they are planned to complete their training
3. Number of current suitably qualified pilots that have A380 bids in place on their LOPs
4. Number of current Melbourne A380 SOs that have base transfer bids to SYD on their LOPs
5. Flying plans for the next 12 - 18 months (in particular the return schedule of the remaining A380s)
It is likely the matter must be considered by CoM at the September meeting, which is scheduled for 13 September 2022. The earlier the information can be provided, the easier it is for us to communicate with CoM in advance.
If you would like to meet to discuss I am available early next week.
38 On 3 September 2022, Mr Alley responded to Captain Lucas:
Thank you for your response regarding our request for A380 SOT recruitment. I have provided answers to your questions below.
I note also your update regarding the AIPA CoM meeting on 13th of September. As previously advised, we are proposing to recruit the initial 2 A380 SOTs on the 11th of October intake course. We will therefore require a response from AIPA prior to the 13th of September in order to finalise contract arrangements with the new intake pilots. I am happy to meet and discuss this in person early next week, however I am requesting a formal response from AIPA by COB Thursday the 8th of September.
…
1. Training projections for the next 12 months
2. Training status of current 'previously stood down' A380 SOs and when they are planned to complete their training
Of the ~18 (not incl LTS), 6 of them are planned to have training completed by the end of BP350, a further 6 are planned for BP351 and the remaining 6 will be planned in BP352. They will be prioritised in front of any new trainees. SOTs commencing in Oct and conversions commencing in Nov won't be ready for sims until the back end of BP352 when the refamils should have been completed.
3. Number of current suitably qualified pilots that have A380 bids in place on their LOPs
60 qualified S/Os who are eligible and available in FY23
4. Number of current Melbourne A380 sos that have base transfer bids to SYD on their LOPs Two, and they will be picked up with our four conversions.
5. Flying plans for the next 12 -18 months (in particular the return schedule of the remaining A380s)
Here is the current A380 Fleet plan:
39 Captain Lucas did not forward this email to the AIPA's CoM, but excerpts of its contents (including the section dealing with the "operational considerations and restraints") were set out in a briefing document circulated to the CoM, which was discussed by the CoM at its meeting on 13 September 2022 for at least 60 to 90 minutes.
40 Between 22 August 2022 and 12 September 2022, Captain Lucas discussed the request, the further information that Mr Alley had supplied on 3 September 2022, and the meaning and application of cl 19.1.2 with various people, including: (1) the AIPA's then executive director, Philip van den Heever; (2) Mr Elliott Dalgleish, the AIPA's senior in-house lawyer; (3) Captain Beavan; (4) Captain Hewett; and (5) First Officer Mark Knight. Captain Lucas discussed those matters with Captains Beavan and Hewett, and First Officer Knight, because each of them was an experienced member of the AIPA, or had been part of the bargaining teams negotiating for elements of Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2015 (EBA9) (LHEA9) or LHEA10 and/or had significant experience with the construction of enterprise agreements.
41 In those discussions, the following subject matters were discussed or raised by members of the CoM with Captain Lucas:
(1) if the AIPA were to agree to the request, then the effect of that agreement would be that the by-passed pilots (being the more senior pilots who were willing to take the positions on the A380 aircraft) would lose the opportunity to be allocated to those positions in accordance with the principles of seniority, and would not get the protections of cl 16.5 of LHEA10 to compensate them;
(2) Second Officers on the B787 and A330 aircraft - that is, the pool of pilots from which the by-passed pilots would come - would consider that the AIPA's agreement to the direct allocation of the SOTs to the A380 aircraft, without by-pass pay or some other protections, to be contrary to the interests of such Second Officers as a group and inconsistent with the AIPA's responsibility to represent its members within that group;
(3) although Mr Alley had said in the request that Qantas's training system and A330 divisor was "forecasted" to be at capacity for the "foreseeable future", Captain Lucas's experience (gained in almost 30 years as a Qantas pilot) was that such forecasts made by Qantas can frequently change quickly; and
(4) at the time the request was made, there were approximately 10 A380 Second Officers waiting to return to work but who had not yet commenced their re-training programs.
42 On 13 September 2022, the CoM of the AIPA met. As noted above, the CoM was provided with a briefing document which included excerpts from the request. The briefing document also referred to subsequent communications between the AIPA and Qantas and set out some legal analysis on issues raised by the request.
43 The request was considered at the CoM meeting. No formal vote was held or resolution passed with respect to the request and the minutes of the meeting that have been adduced do not deal with the request. Captain Lucas recalls that the following statements were made during the meeting in relation to the request:
(1) Captain Hewett said:
Prior to LHEA9, SO were allocated type on date of joining. LHEA9 introduced the "first day lottery" clauses whereby pilots came into lower category aircraft first and would only be allocated A380 vacancy due to operational reasons. It changed to the current wording in LHEA10.
(2) Second Officer Bluston said:
Feedback from members is that we need to strongly represent their interests here. We need to communicate to members that we will be challenging any deviation from the LHEA provisions regarding seniority.
(3) Captain Hodson said:
It is fundamentally wrong to bring someone in to perform a role when you have someone already in the company who can perform the role.
(4) Second Officer B Smith said:
Feedback from the members is that we need to strongly represent their interests and ensure that the seniority provisions relating to promotion to the A380 are preserved.
44 Captain Lucas gave particular weight to Captain Hewett's contributions to the debate because he understood him to be legally qualified, and also to have a deep knowledge of the genesis of what is now cl 19.1.2 of LHEA10.
45 Captain Lucas's understanding of the effect of the discussion at the CoM meeting was that the AIPA would not give its agreement under cl 19.1.2, but would write to Qantas, noting that it was open to Qantas to directly allocate the SOTs to the A380 aircraft in accordance with cl 16.5 of LHEA10. Captain Lucas put that position to the meeting in terms, and then asked whether members of the CoM disagreed with that proposed course of action. No dissent was expressed.
46 Captain Lucas's process of reasoning for his support of the position set out in the previous paragraph involved the following considerations:
(1) LHEA10 required that pilots be allocated to any vacancies in accordance with the seniority provisions of that instrument and, thus, vacancies should be allocated in order of seniority under cl 16.4, or, if pilots are by-passed for operational reasons, they should have the protections afforded by cl 16.5;
(2) cl 19.1.2 provides for a departure from that general position, in that it allows the AIPA to agree that for operational reasons Qantas can by-pass suitably qualified and more senior pilots so as to directly allocate SOTs to vacancies on, relevantly, the A380 aircraft, without providing the by-passed pilots the protections afforded by cl 16.5;
(3) the reasons and materials advanced by Qantas in support of its request did not persuade him that the AIPA should give its agreement under cl 19.1.2, because he considered that such agreement would seriously disadvantage the by-passed pilots, without any compensation, and thereby undermine the integrity of the seniority system; and
(4) if the AIPA were to withhold its agreement, this would not operate as a veto to the direct allocation of SOTs to the A380 aircraft proposed by Qantas, because it was open to Qantas to effect such a direct allocation by complying with cl 16.5 of LHEA10 in relation to the pilots who would thereby be by-passed, or otherwise to come to an agreement with the AIPA about some other way to protect the by-passed pilots.
47 On 14 September 2022, the day after the CoM meeting, Captain Lucas wrote to Mr Alley:
I refer to your email and the information provided therein.
Yesterday the AIPA CoM considered Qantas' request for AIPA approval under clause 19.2.1 to allocate SOTs directly to the A380.
It was confirmed that AIPA's general position is that pilots should be allocated to vacancies in seniority and in accordance with the LHEA. As you know, the LHEA states:
17.1 Status on appointment
On appointment with the Company a pilot will have the status of SOT.
17.2 Status on completion of training
On completion of training (including aircraft type rating and en route flying) a SOT will have the status of S/O on the aircraft type to which the pilot is initially allocated by the Company.
And then:
19.1.2 Upon completion of training, a SOT will be allocated by the Company to the B787, A330 or A330/A350 SFF aircraft rather than the B747 and A380 aircraft unless there are insufficient bids from suitably qualified pilots employed prior to the commencement of clause 32.7, or otherwise agreed with the Association for operational reasons. The Association will not unreasonably withhold agreement.
Therefore, it is AIPAs position that SOTs must be allocated to the B787, A330 or B787, A330 or A330/A350 SFF Second Officer categories only and that any vacancies on the A380, must be allocated in accordance with the seniority provisions in the LHEA.
We note the Company has provided AIPA with a number of 'operational reasons' that it says prompted its request to seek agreement from AIPA as provided for in clause 19.2.1. AIPA, however, does not believe the reasons provided by the Company justifies a deviation from the agreed provisions of the LHEA in circumstances where:
1. The LHEA already contains provisions which allows the Company to allocate vacancies not in seniority order. To this end, in accordance with clause 16.5 the parties already agreed to appropriate bypass provisions to ensure more senior pilots are not significantly affected where operational reasons necessitate vacancies to be allocated not in accordance with clause 16.4.
2. The information provided by Qantas indicate that it holds 60 sufficient bids from suitably qualified pilots -some of these pilots will be directly prejudicially affected by the proposal. These affected pilots have individual rights under the LHEA should the Company elects to bypass them -AIPA is not inclined to waive these pilots' rights on their behalf;
3. The Company therefore has the ability to do what it intends to do, and must do so as set out in clause 16.5.
CoM has confirmed today that its position is that the Company complies with the provisions of the LHEA, and in particular clause 16.5 when it proposes to bypass more senior pilots.
(emphasis in original)
48 On 20 September 2022, Mr Alley responded to Captain Lucas in the following terms:
I refer to previous correspondence most recently your email of 14 September 2022 (Response).
Our request to AIPA was first made via email on 20 August 2022. In that email we provided compelling operational reasons for allocating new SOT's to the A380. In its Response AIPA does not reject these reasons. We therefore proceed on the basis that AIPA accepts there are sound operational reasons for the proposed allocation. Should this not be the case, and should AIPA challenge the operational reasons we have advanced, we ask AIPA to detail its position as part of any further response.
In our view, clause 19.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 2020 (LHEA) is plain in its operation; the Company is to allocate SOT's to B787, A330 or A330/A350 SFF aircraft rather than the A380 unless there are insufficient bids from suitably qualified pilots employed prior to the commencement of clause 32. 7 or unless otherwise agreed with the Association for operational reasons. We accept for present purposes that there are sufficient bids from suitably qualified pilots. The issue then is whether there are operational reasons for the Company to allocate SOT's to the A380. To the extent there is, and this is not challenged by AIPA, and to the extent the Company seeks AIPA's agreement to so allocate, the LHEA mandates that AIPA will not unreasonably withhold its agreement. This is the totality of interpretation that should be required.
In its Response, AIPA says SOT's must only be allocated to the A380 in accordance the seniority provisions at clause 16.4 and that to the extent the Company allocates positions on the A380 other than in seniority order, then the bypass provisions under clause 16.5 apply. AIPA then summarises its position by saying the Company has the ability to do what it wants to do but must do so pursuant to clause 16.5. We cannot accept this argument and observe:
• Clause 19.1.2 specifically deals with the allocation of SOT's to aircraft types. There is no basis to read the clause subject to the promotional clauses at clause 16.4 or the bypass provisions at clause 16.5. It is trite to note the particular clause prevails over the general.
• Clause 16.4 does not have relevance precisely because we are proposing to address the shortfall in our A380 SO's establishment through the allocation of SOT's and not through the advertising of vacancies. In any event, clause 16.4.1 (a) expressly provides that the application of seniority does not limit any other provision of the agreement.
• Had the parties intended to call up the bypass rules when allocating SOT's to the A380 under clause 19.1.2, such provision could have been simply and readily included in the clause. The parties did not choose this path and there should be no suggestion now that bypass rules apply.
• Most significantly, on AIPA's construction, the process of agreement that is contemplated in clause 19.1.2 is made redundant and the concluding words of clause 19.1.2 - or otherwise agreed with the Association for operational reasons. The Association will not unreasonably withhold agreement - would have no work to do. This simply cannot be correct.
In summary, we are satisfied the AIPA interpretation is without merit. We are also concerned that AIPA, either knowingly or mistakenly, places itself in breach and evidences an ongoing intent that it will not be bound by its industrial obligations. This is not a position that Qantas can accept, particularly where it will impact the efficient restart of our international operations. In this regard, and given AIPA has withheld its agreement, we have now cancelled the 2 x proposed A380 SOT training courses which had been scheduled for 11 October. The next tranche of such courses are currently scheduled to commence on 7 November, with 4 x SOT's scheduled to commence on this date, and with a further 16 x A380 SOT training courses planned over the balance of the training year. We are committed to these courses proceeding.
In light of the matters set out above, we invite AIPA to reconsider its position, remedy its breach, and provide its agreement to the proposed allocation. In the alternative, and if there are any other grounds on which AIPA says it can reasonably withhold agreement, we invite you to provide us with these reasons by no later than COB on 26 September. In the further alternative, if AIPA takes the position that it agrees to the allocation for operational reasons, but contends that the bypass rules should then apply, we again ask you to confirm by COB on 26 September.
Qantas otherwise reserves all its rights and indicates that in the absence of a satisfactory response it may commence proceedings without further notice.
(bold emphasis in original; underline emphasis added)
49 Captain Lucas did not consider this to be a separate or fresh request for the agreement of the AIPA under cl 19.1.2, because it did not appear to him that Qantas had advanced any additional grounds or new information to support the "operational considerations and constraints" that had been set out in the 20 August 2022 email. Thus, Captain Lucas did not consider there to be any need for the CoM to specifically discuss the 20 September 2022 email or how the AIPA should respond to it. He formed the view that the AIPA's response was covered by the outcome of the meeting of the CoM on 13 September 2022 and he continued to hold the same position and reasoning process that is described at paragraphs [45] and [46] above. He also had in mind that the dispute resolution procedure in Part 8 of LHEA10 was an available mechanism to resolve any questions about the request or the AIPA's responses thereto.
50 Captain Lucas instructed Mr Dalgleish to respond to Mr Alley's letter, reiterating the AIPA's position as set out in Captain Lucas's 14 September 2022 email, and further illuminating that position as appropriate, including by reference to the availability of the dispute resolution procedure in LHEA10.
51 On 29 September 2022, Mr Dalgleish sent to Mr Alley a letter, which Captain Lucas and Captain Hewett had approved, in the following terms:
I refer to your letter dated 20 September 2022 to Captain Anthony Lucas, AIPA President; and all other relevant correspondence in relation to this matter to date.
1. AIPA accepts that seniority is not always the only element in the allocation of pilots to a category and that the seniority provisions in the Qantas Airways Limited Pilots (Long Haul) Enterprise Agreement 20201 (Long Haul Agreement) are specific and limited in scope.
2. AIPA agrees with Qantas for present purposes that there are sufficient bids from suitably qualified pilots.
3. AIPA does not accept that there are sound operational reasons for the proposed allocation by Qantas. This is evidenced by the actions of Qantas to date as there are not insufficient bids from suitably qualified pilots employed prior to the commencement of clause 32. 7. AIPA also does not accept that compliance with the Long Haul Agreement will materially impact the efficient restart of Qantas' international operations.
4. We are concerned that Qantas has placed itself in a position where it will breach the Long Haul Agreement, and its industrial obligations.
5. We are satisfied that Qantas' interpretation is without merit.
6. The totality of interpretation of the Long Haul Agreement requires an understanding of the following:
a) Pursuant to clause 16.4, and 16.5, and 19.1.2 of the Long Haul Agreement, a later act or provision impliedly amends or repeals the earlier acts or provisions to the extent of the inconsistency;
b) Where different words are used and the same words could have been used, there is a presumption that the legislature intended the words to bear different meanings. Both presumptions readily yield to the statutory context: see Commissioner of Taxes (Vic) v Lennon (1921) 29 CLR 579 at 590; McGraw-Hinds (Aust) Pty Ltd v Smith (1978) 144 CLR 633 at 643; Murphy v Farmer (1988) 165 CLR 19 at 27;
c) An award (and/or Enterprise Agreement) "must not be interpreted in a vacuum divorced from industrial realities": City of Wanneroo at [57]; Australian Workers' Union v Cleanevent Australia Pty Ltd at [14];
d) Notwithstanding, 'that the history of provisions, specifically the time when it was made and circumstances at the time supply the best and surest mode of interpreting a provision': Andrew John Short v FW Hercus Pty Ltd (1993) 40 FCR 511 at [6];
e) In short, narrow, or pedantic approaches to interpretation are misplaced, the search is for the meaning intended by the framer(s) of the document: Kucks v CSR Ltd (1996) 66 IR 182 at 184; and
f) See Lewison and Hughes, n 38, Ch 7 (for contracts); and Pearce D and Geddes R, Statutory Interpretation in Australia (8th ed, LexisNexis, NSW, 2014) Ch 4, pp 169-187 (for statutes). Latin phrases expressing syntactical presumptions such as:
(i) generalia specialibus non derogant - Where a general and specific provision conflict, the general provision is to be read subject to the specific provision.
(ii) expressio unius est exclusio alterius - Express reference to one matter indicates that other matters are excluded.
iii) ejusdem generis - Where specific matters with a common genus are followed by general words, the general words are constrained by reference to that genus.
(iv) 'Maxims are not hard and fast rules to be applied mechanically in order to reveal the answer': Minister Administering the Crown Lands Act v NSW Aboriginal Land Council (2008) 237 CLR 285 at [14]; Lewison and Hughes, n 38 at [7.01]; and
g) Lastly, where there is doubt about the interpretation of a provision, the courts are increasingly turning to detailed considerations of the history to seek to understand the purpose of the provision: see Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1.
7. Applying these rules of interpretation it is clear that clause 19.1.2 pertains to the allocation of SOTs to the A330, B787 and A330/A350 SFF aircraft and such allocation, is not subject to seniority. The B747 and A380 are selfevidently excluded from this list.
8. It follows that clause 19.1.2 infers, having regards to the history, the industrial realities, and the express terms, that principles of seniority do apply to the allocation to the B747 and A380. Therefore to suggest there is "no basis" to read clause 19.1.2 subject to the seniority provisions, is misconceived.
Proposed resolution
9. Nevertheless, in our view, if AIPA was to agree to the allocation of SOTs to the A380 SO category for operational reasons, then AIPA would contend that the parties agree to appropriate measures to protect those suitably qualified pilots with bids to the A380 SO category who, but for the parties' agreement, would have been allocated to that category.
10. In this regard AIPA suggests the protections afforded by the bypass provisions in the Long Haul Agreement are appropriate in the circumstances; however, we are willing to consider alternative measures Qantas may want to propose.
11. AIPA notes this proposal, if accepted, will not in any way impact the efficient restart of Qantas' international operations.
12. I would be grateful if we could find a satisfactory resolution of this dispute between Qantas and the Association on the basis set out in paragraphs 9 and 10. Alternatively, we propose the parties seek the assistance of the industrial tribunal (an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure pursuant to clause 47 -Dispute Resolution of the LHEA) to resolve the impasse, on an expediated basis.
13. Please confirm which option is agreeable to Qantas to assist AIPA, and its membership, in assessing the most appropriate course of action in these circumstances by COB Thursday 6 October 2022.
(footnotes omitted; emphasis in the original)
52 On 6 October 2022, Mr Alley wrote to Mr Dalgleish in the following terms:
I refer to recent correspondence in this matter including my email to Captain Lucas dated 20 August, the email from Captain Lucas dated 14 September, my letter to Captain Lucas dated 20 September, and your letter dated 29 September.
Qantas does not propose to enter ongoing debate about the operation of relevant clauses of the LHEA. We will however set out the following matters for your consideration and so they are a matter of record:
1. In my letter of 20 September I expressly asked AIPA to identify the grounds on which it said it could reasonably withhold its agreement to the proposed allocation. AIPA has identified no such grounds. It has merely repeated its previous assertion it can reasonably withhold agreement on the grounds there are sufficient bids from suitably qualified pilots employed prior to the commencement of clause 32.7. Qantas does not accept this provides a basis for withholding agreement.
2. It is difficult to reconcile the position taken in the email from Captain Lucas with your letter of 29 September. In his email, Captain Lucas suggested that Qantas could simply proceed with the allocation on the basis of, and subject to, the clause 16.5 by-pass provisions. In contrast, you set out a proposal where AIPA would provide its agreement under clause 19.1.2 on operational grounds in return for Qantas agreeing to pay by-pass consistent with that provided for in clause 16.5, or by otherwise agreeing to some other form of "protection" for pilots who but for the proposed allocation would have been promoted to the A380 SO Category. It is therefore not clear whether AIPA says we can only proceed with AIPA's agreement, or whether AIPA says we can proceed without agreement but subject to 16.5. We reasonably expect that AIPA will clarify its position.
3. Our position on clause 16.4/16.5 remains as set out in our letter of 20 September. We do not see that these clauses are enlivened or can be relied upon in circumstances where we have not advertised vacancies and where we are proposing to address our establishment levels on the A380 SO Category through the direct allocation of SOT's. AIPA's interpretation of the relevant clauses is fundamentally misconceived and the recitation of general principles of construction at paragraph 6 to 8 of your most recent letter of 29 September 2022 does not advance AIPA's position. We proceed on basis that agreement from AIPA is required under clause 19.1.2, that agreement not to be unreasonably withheld, and that clause 19.1.2 is not to be read subject to clauses 16.4 or 16.5.
4. There is no basis for AIPA to suggest that we are in danger of breaching our industrial obligations. We do however reserve all of our rights on the question of the remedies available should AIPA continue in breach of its obligation not to unreasonably withhold agreement.
5. We respond as follows to the proposal set out at paragraphs 9 and 10 of your letter:
a. Qantas will not and cannot agree to extend the clause 16.5 by-pass provisions to the identified Second Officers.
i. We will not agree because AIPA is effectively trying to extract a price to do what it is required to do under the terms of the existing agreement. To the extent that AIPA claims the by-pass provisions should apply when it gives its agreement under clause 19.1.2, this is properly a matter for future bargaining.
ii. We cannot agree because we say clause 16.5 is not enlivened and any purported agreement between the parties to apply the clause 16.5 provisions would not have the support of the LHEA and would potentially cut across the rights of other pilots.
b. Should you have any alternative proposal for the "protection" of identified Second Officers please table this proposal as a matter of priority. While Qantas will reasonably consider any such proposal, our fundamental position remains that we should not be required to pay for an agreement that AIPA is obliged to provide. Nor should the tabling of any such proposal result in any further delay to AIPA's agreement pursuant to clause 19.1.2.
6. With respect to your alternative proposal as set out at paragraph 12 we say:
a. It is not clear to us what specific issue or question AIPA proposes be referred to the Commission for determination. If AIPA has in mind a specific issue /question, please advise.
b. Even if an appropriate issue / question can be identified, and even if the parties agree to the Commission dealing with the matter on an expedited basis, it is unlikely that we would have any arbitrated outcome this calendar year.
c. Your alternative proposal is therefore not acceptable to Qantas given the operational issues that we have previously identified and given our current need to increase the A380 SO establishment.
7. Notwithstanding the above, Qantas is prepared to resolve this matter on the basis that:
a. AIPA provide agreement under clause 19.1.2 to the proposed allocation on operational grounds. This will allow Qantas to proceed with the allocation and the training of SOT's in the A380 SO Category.
b. The parties agree to then refer to the Commission the specific question of whether the by-pass provisions under clause 16.5 are triggered in these circumstances.
Having regard to the urgency of the operational matters set out in my original email of 20 August, in the absence of a satisfactory response to the above matters received by no later than 12 October 2022, Qantas reserves its right to take such action as it considers necessary including commencing Federal Court proceedings on an expedited basis seeking such relief as Qantas considers appropriate.
53 On 11 October 2022, the AIPA's CoM met again. It was agreed at that meeting that the AIPA would seek external legal advice, given the divergence in the positions taken by the AIPA and Qantas. The minutes of that meeting record:
A380 direct entry SO
PVDH - have had correspondence with QF on this issue. QF position is that if there are operational issues, AIPA cannot withhold agreement. AIPA states we can only give agreement if there are operational reasons. AIPA continues to propose that we will agree but there needs to be protections for pilots affected. QF state they will not pay for approval that AIPA is required to give. AIPA is seeking advice.
(emphasis in original)
54 I infer that the reference to "PVDH" is a reference to Mr Philip van den Heever who, as noted above, was the executive director of the AIPA.
55 On 12 October 2022 Mr Dalgleish, on the instructions of Captain Lucas, responded to Mr Alley's 6 October 2022 letter. Mr Dalgleish's letter comprised nine pages. It is sufficient for present purposes to set out Captain Lucas's summary of Mr Dalgleish's letter, namely that it:
(1) asserted that:
(a) the impact of cl 19.1.2 is to both limit the discretion of Qantas management in the allocation of SOTs and increase the control that the AIPA as the representative of pilots has over its members' working lives, subject to the requirement that it exercise its decision-making discretion reasonably on behalf of its members;
(b) the introduction of cl 19.1.2 into LHEA10 was a deliberate and purposeful change from the system applicable under LHEA9; and
(c) the AIPA was not "required" or "obliged" to give its agreement under cl 19.1.2 in the face of the "operational considerations and restraints" identified by Qantas in the 20 August 2022 email, but rather, could reasonably withhold agreement if the withholding was bona fide and not capricious or arbitrary; and
(2) again sought to engage with Qantas about seeking the assistance of the Fair Work Commission to resolve the dispute.
56 On or around 14 October 2022, on the instructions of Captain Lucas, Mr Dalgleish engaged Mr Ian Neil SC, to provide the AIPA with legal advice in relation to the meaning and application of cl 19.1.2 of LHEA10.
57 On 21 October 2022, Mr Alley responded to Mr Dalgleish's 12 October 2022 letter:
I refer to AIPA's letter of 12 October 2022 (Letter) and to previous correspondence.
Despite the length of AIPA's Letter you have not responded to the core matters raised in our letter of 6 October 2022. To summarise, we reasonably anticipated responses to the following questions:
1. Does AIPA still take the position that Qantas can simply allocate SOT's to the A380, absent agreement from AIPA, and with the result that the clause 16.4 / 16.5 bypass provisions would then apply, or has this position changed?
2. What specific "protections" do you seek for Second Officers who would be "bypassed" if AIPA were to agree to the proposed allocation?
3. To resolve the impasse, would AIPA provide its agreement to the proposed allocation on operational grounds and with the parties to then refer the question of the applicability of clauses 16.4/16.5 to the Fair Work Commission?
With respect to your proposal for a joint referral to a Full Bench of the Fair Work Commission, being in substance a proposal that had previously been tabled and declined, we again observe that you still have not identified the question that you propose be referred. We otherwise point you back to paragraph 6 of our letter of 6 October where we have set out why such a proposal is not acceptable having regard to current operational issues.
Further to the matters set out in our original email dated 20 August, I also now advise that in BP352 commencing on 7th November 2022 projecting through to the end of the current training year we will be working to a maximum divisor in the A330 Second Officer category with a deficit to required establishment. In these circumstances, we again confirm and reinforce that we are not operationally in a position to release Second Officers to the A380. Therefore, and to the extent that AIPA does not provide its agreement under clause 19.1.2, we put AIPA on direct notice that its ongoing breach is likely to ultimately compromise the A380 flying programme, the revenue associated with this programme, and in turn, the amount of flying available to Captains and First Officers currently on the A380.
Should you have any response on these matters we invite you to provide that response as a matter of urgency and by no later than close of business on 25 October.
(emphasis in original)
58 On 25 October 2022, Mr Dalgleish responded to Mr Alley:
I refer to your email dated 21 October 2022 to Mr Elliott Dalgleish; and all other relevant correspondence in relation to this matter to date.
Does AIPA still take the position that Qantas can simply allocate SOT's to the A380, absent agreement from AIPA, and with the result that the clause 16.4 / 16.5 bypass provisions would then apply, or has this position changed?
1. This is not AIPA's position.
2. The initial correspondence from Tony Lucas, AIPA President was the Association's suggestion to deal with Qantas' request in a practical manner to arrive at a sensible industrial outcome.
3. In the Association's correspondence our position was put as follows:
"…if AIPA was to agree to the allocation of SOTs to the A380 SO category for operational reasons, then AIPA would contend that the parties agree to appropriate measures to protect those suitably qualified pilots with bids to the A380 SO category who, but for the parties' agreement, would have been allocated to that category."
4. AIPA proposed that "the protections afforded by the bypass provisions" would be deemed by the Association as an "appropriate measure".
5. Unfortunately, the Company has rejected the Association's proposal without any valid reason and has refused to make any counter-offer.
6. Rather, the Company stated the Association is in breach for not exercising its decision-making discretion in favour of Qantas. Thereby not permitting the Association to seek such protections on behalf of its members and/or act in our members' best interests.
7. The Court or Commission will not interfere with AIPA's decision making when it was reasonably justifiable. When the Association exercises its discretion reasonably, it is entirely untenable that it would constitute a breach of the enterprise agreement.
What specific "protections" do you seek for Second Officers who would be "bypassed" if AIPA were to agree to the proposed allocation?
8. Without prejudice to the parties' ultimate positions, AIPA is willing to discuss with Qantas the resolution of this dispute on the basis of the following proposals:
a. Additional pay equivalent to bypass pay, and the related protections (without affecting the rights of any employee from the pilot establishment/AIPA membership); or
b. Additional pay equivalent to bypass pay and an undertaking the Company will not enforce the freeze period (if any) relevant to the affected pilots' next allocated vacancy; or
c. The following protections and provisions applying:
i. Clause 16.5.1(a)
ii. Clause 16.5.1(e)
iii. Clause 16.5.2 (a) and (b)
iv. Clause 16.5.3
v. Clause 16.5.4
vi. Clause 16.5.5
vii. Clause 16.5.6
viii. Clause 16.5.9
ix. Clause 16.5.10
x. The list does not include clause 16.5.8 [Bypassed pilot to commence training within two (2) years]. In lieu of clause 16.5.8, AIPA proposes the Company provides an undertaking that it will not enforce a freeze period relevant to the affected pilots' next allocated vacancy (if any); or
d. Any other proposal Qantas may have in resolution of the dispute.
To resolve the impasse, would AIPA provide its agreement to the proposed allocation on operational grounds and with the parties to then refer the question of the applicability of clauses 16.4/16.5 to the Fair Work Commission?
9. No.
10. The Association does not advance the position that clauses 16.4 and 16.5 apply.
11. Our proposal is for the parties to agree to afford the affected pilots with similar protections, as those provided in the bypass provisions.
12. To repeat, the Association will agree to the request provided
"…appropriate measures to protect those suitably qualified pilots with bids to the A380 SO category who, but for the parties' agreement, would have been allocated to that category."
13. Regrettably, Qantas has refused to engage with the Association on what appropriate measures the Company would be willing to consider.
With respect to your proposal for a joint referral to a Full Bench of the Fair Work Commission, being in substance a proposal that had previously been tabled and declined, we again observe that you still have not identified the question that you propose be referred. We otherwise point you back to paragraph 6 of our letter of 6 October where we have set out why such a proposal is not acceptable having regard to current operational issues.
Further to the matters set out in our original email dated 20 August, I also now advise that in BP352 commencing on 7th November 2022 projecting through to the end of the current training year we will be working to a maximum divisor in the A330 Second Officer category with a deficit to required establishment. In these circumstances, we again confirm and reinforce that we are not operationally in a position to release Second Officers to the A380. Therefore, and to the extent that AIPA does not provide its agreement under clause 19.1.2, we put AIPA on direct notice that its ongoing breach is likely to ultimately compromise the A380 flying programme, the revenue associated with this programme, and in turn, the amount of flying available to Captains and First Officers currently on the A380.
14. Qantas has a duty to mitigate its damages. It has threatened not to do so.
15. Qantas must take appropriate steps to avoid the alleged "damages". It has threatened not to do so.
16. Qantas can agree on a without prejudice basis to our proposal in paragraph 8 above and the dispute will be resolved.
17. In our view, the Association's discretionary decision making was not unreasonable. Nevertheless, the parties may seek the assistance of the industrial tribunal (an application pursuant to s 739 of the Fair Work Act 2009 (Cth) (Act) for the Fair Work Commission (Commission) to deal with a dispute in accordance with the dispute settlement procedure pursuant to clause 47 - Dispute Resolution of the Long Haul Agreement) to resolve the impasse, on an expedited basis, and as such the Industrial Tribunal may determine if the Association was in breach of its obligations.
18. The AIPA rejects that the Association is in breach of its obligations.
19. Lastly, we reject Qantas will suffer any damages as alleged.
(emphasis in original)
59 Also, on 25 October 2022, Captain Lucas, on behalf of the AIPA, filed an application in the Commission in which he sought, inter alia, a determination as to the correct interpretation of cl 19.1.2 of LHEA10.
60 On 8 November 2022, the AIPA's CoM met again. The dispute was discussed again, and there was no support for the AIPA to provide agreement under cl 19.1.2 when Qantas had not offered the protections afforded by cl 16.5 (or similar protections) to the pilots who would be by-passed pilots. The minutes of that meeting record:
A380 SO Direct Entry Dispute Philip and Elliott briefed the CoM on the progress of the dispute process currently before the FWC. Concilliation hearings have commenced with QF being required to reconsider their position. The CoM were asked to consider the offer currently put forward by Qantas. The offer only provides for a reduced training freeze period for affected pilots if/when they move to the A380 in the future and does not include any financial compensation or by-pass pay. The offer did not receive support from the CoM. Generally consensus was that by-pass pay (and associated T+C's, or something similar, would be the very least AIPA would accept.
Further discussion centred around whether QF paying by-pass pay as an alternative to training the affected pilots to the A380 was even enough. In general terms, AIPA may find it hard to force the company to train the affected pilots to the fleet as QF may just choose not to put them on the A380 anyway.