Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association - [2020] FCA 951 - FCA 2020 case summary — Zoe

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Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association

[2020] FCA 951

Federal Court of Australia|2020-07-09|Before: Flick J

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Court

Federal Court of Australia

Decision date

2020-07-09

Before

Flick J

Source

Original judgment source is linked above.

Judgment (24 paragraphs)

[1]

The parties are to bring in Short Minutes of Orders to give effect to these reasons within seven days. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

[2]

FLICK J: 1 This proceeding again concerns disruption to the airline industry caused by the COVID-19 pandemic. An earlier dispute before this Court as presently constituted centred upon the entitlement of employees who had been stood down to access personal/carer's leave or compassionate leave: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Qantas Airways Limited [2020] FCA 656. 2 The present proceeding concerns the standing down of Licensed Aircraft Maintenance Engineers ("LAMEs") by Qantas Airways Ltd ("Qantas") and Jetstar Airways Pty Ltd ("Jetstar"). The factual background to the present proceeding relevantly crystallised at two meetings, one held on 18 March 2020 and the other on 20 March 2020, and a letter from the Australian Licensed Aircraft Engineers Association (the "Engineers Association") dated 25 March 2020. 3 Following those meetings and that letter, on 26 March 2020, the Engineers Association filed with the Fair Work Commission (the "Commission") two Applications for the Commission to deal with a dispute - one Application in respect to each of the two airlines. But both Qantas and Jetstar maintained that the Commission lacked jurisdiction. A timetable for the resolution of that question of jurisdiction had been set by the Commission. Notwithstanding the manifest intent of the Commission to resolve the question, on 12 May 2020 Qantas and Jetstar commenced the proceeding in this Court seeking (inter alia) an order restraining the Commission from dealing with the applications that had been lodged by the Engineers Association. 4 On 19 May 2020, a Judge of this Court granted interlocutory relief and ordered that the proceeding be expedited: Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2020] FCA 682. The proceeding came on for final hearing on 18 and 19 June 2020. 5 In very summary form, the Commission pursuant to s 739 of the Fair Work Act 2009 (Cth) (the "Fair Work Act") has power "to deal with a dispute" if there is a term in the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 (the "Qantas Agreement") and a term in the Jetstar Airways Engineering & Maintenance Enterprise Agreement 2018 (the "Jetstar Agreement") which "provides a procedure for dealing with disputes": s 738 of the Fair Work Act. 6 Before this Court, Qantas and Jetstar accepted that both the Qantas Agreement and the Jetstar Agreement contained "a procedure for dealing with disputes" but contended "at two alternative levels" that: each of the dispute resolution procedures imposed "mandatory prerequisites" which had not been satisfied - such that the Commission had "no jurisdiction to arbitrate" the disputes; or, assuming there had been compliance with the "mandatory prerequisites", the Commission did not have jurisdiction to arbitrate either: whether there had been a "stoppage of work" which it had been said relevantly caused the inability to usefully employ LAMEs - referred to as the "Stoppage Issue"; or whether any "stoppage of work" which may have occurred was through any cause for which Qantas or Jetstar could not reasonably be held responsible - referred to as the "Causation Issue". On its approach, the Commission at best had jurisdiction to arbitrate only: whether any of the LAMEs could "usefully be employed". Why the same submissions could not have been put before the Commission for resolution, rather than this Court, was not satisfactorily explained. 7 Again in very summary form, it has been concluded that: the requirements imposed by cl 6 of the Qantas Agreement and cl 20 of the Jetstar Agreement must be satisfied in order for the Commission to have power to "deal with" the dispute that had arisen; but that, on the facts: there has been substantial compliance with each of these requirements. And it is further concluded that: the power of the Commission to "deal with" the "dispute" is confined to the "dispute" as to whether there is "useful work" which the LAMEs can perform - although the precise ambit of that "dispute" must be left to the Commission to resolve by reference to all the facts and other materials available to it. 8 In reaching these conclusions it is necessary to: set forth the relevant terms of both the Qantas Agreement and the Jetstar Agreement, together with a very general outline of the relevant principles by reference to which such agreements are to be construed; set forth the background facts which gave rise to the two proceedings in this Court, those facts being of relevance to whether the "mandatory prerequisites" had been satisfied and also of relevance to identifying the ambit of any "matter" sought to be resolved by the dispute resolution procedure; consider whether the dispute resolution procedures in each of the Agreements imposed mandatory prerequisites to invoking the power of the Commission to "deal with" the dispute and whether, even if they did, what those "prerequisites" required to be done and whether they had in any event been satisfied; and consider whether the disputes which had been the subject of the two Form 10 Applications filed with the Commission went beyond any "dispute" which had been the subject of any dispute resolution procedure.

[4]

The Qantas Agreement 10 Clause 6 of the Qantas Agreement provides in part as follows: DISPUTE SETTLING PROCEDURE 6.1 In the event of a dispute arising in the workplace about matters arising under this Agreement or in relation to the National Employment Standards, the procedure to resolve the matter will be as follows: 6.1.1 The employee and the employee's supervisor meeting and conferring on the matter. 6.1.2 If the matter is not resolved at this meeting, the parties to the dispute must arrange for further discussions between the employee and more senior levels of management. 6.1.3 If the matter cannot be resolved it may be referred by either party to FWC for resolution. This does not affect the right of either party to a dispute to take other action to resolve the dispute. 11 Clause 14.6 of the Qantas Agreement provides as follows: 14.6 Stand down Qantas shall have the right to deduct payment for any day an employee cannot be usefully employed because of a strike or stoppage of work through any cause for which Qantas cannot reasonably be held responsible. The right given in this clause is subject to the following conditions: 14.6.1 When Qantas proposes to exercise the right given in this clause it shall notify the employee. During the period such notification remains in force the employee shall be deemed to be stood down for the purposes of this clause. 14.6.2 An employee who is stood down shall be treated for all purposes (other than payment of wages) as having continuity of service and employment notwithstanding such standing down. 14.6.3 An employee who is stood down may at any time during the period the employee is stood down terminate his/her employment without notice and the employee shall be entitled to receive from Qantas as soon as practicable any moneys due to the employee at the time of termination. The day on which the employee exercises the right of termination without notice shall be the day on which the employment is terminated. 14.6.4 An employee whose employment is terminated under clause 14.6.3 shall for all purposes (other than payment in lieu of notice) be treated as if employment had been terminated by Qantas without default of the employee. 14.6.5 An employee who is stood down as aforesaid shall be at liberty to take other employment. 14.6.6 An employee stood down for a period of more than 5 working days who has exercised the right to take other employment shall be entitled to work out in such other employment notice of up to one week provided the employee notifies Qantas of the employee so doing. 14.6.7 An employee whom Qantas proposes to stand down may elect to take, for the period of the stand down only and for such further time as is reasonably required for the employee to return to his normal place of abode, any annual leave to which the employee is entitled or which is accruing and upon such election being exercised the employee's annual leave shall be reduced accordingly. 14.6.8 Notwithstanding anything contained in clause 14.6 Qantas will not deduct payment for any day prescribed by the Agreement as a public holiday which occurs during the period of stand down of an employee except to the extent that such employee has become entitled to payment for the holiday in other employment. An employee claiming for a holiday shall, if required by Qantas, furnish a statutory declaration setting out details of any other employment during this period and the remuneration received therein.

[5]

The Jetstar Agreement 12 Clause 20 of the Jetstar Agreement provides as follows: 20. RESOLVING WORKPLACE CONCERNS OR DISPUTES If there is a dispute relating to any matter arising under this Agreement or in relation to the NES, the following dispute resolution procedure will be followed: 20.1 A dispute will first be discussed between the Employee and their local Line Maintenance Manager or Duty Operations Manager (in ports where there is no LMM/DOM, the dispute will be discussed with their local Supervisor in the first instance). The local manager will make a decision on the potential resolution and advise the Employee verbally or in writing if requested within 72 hours of notification. 20.2 If the dispute is not resolved, the Employee may refer the matter to more senior levels of management for further consideration. A response will be provided where possible within five (5) working days, but no later than ten (10) working days. 20.3 If the dispute remains unresolved either party may notify the existence of a dispute to the FWC for conciliation and if conciliation is unsuccessful, arbitration. 20.4 Where the above procedures are being followed work will continue as per the status quo prior to the dispute arising provided the matter in dispute does not relate to an imminent risk to health or safety and the Employee cannot be reallocated to other appropriate duties. 20.5 No party will be prejudiced as to the final settlement by the continuation of work in accordance with this clause. 20.6 The Employee has the right to be represented by a representative of their choice (including a representative from a Union) during any step in this process. 13 Clause 30.5.1 of the Jetstar Agreement provides as follows: 30.5 Stand down without pay 30.5.1 The Company may deduct payment from an Employee for any day or part of a day in which they cannot be usefully employed because of a stoppage of work by any cause, which Jetstar cannot reasonably prevent. In these situations consideration will first be given to the following alternatives before deduction of pay occurs: (i) redeployment into other productive duties; or (ii) where the above cannot be achieved, deployment onto any paid leave owing.

[6]

Principles of construction 14 Qantas and Jetstar (on the one hand) and the Engineers Association (on the other) adopted very different approaches to the construction of cll 6 and 14.6 of the Qantas Agreement and cll 20 and 30.5 of the Jetstar Agreement. 15 The principles to be applied in construing these provisions were nevertheless common ground. It was the application of those principles which occasioned division. 16 In construing an award or an enterprise agreement the task is one of construing the document itself but doing so in a practical manner and within the industrial environment in which it was drafted: Kucks v CSR Ltd (1996) 66 IR 182 at 184 ("Kucks"). In a passage oft cited, Madgwick J there summarised this approach as follows: Legal principles It is trite that narrow or pedantic approaches to the interpretation of an award are misplaced. The search is for the meaning intended by the framer(s) of the document, bearing in mind that such framer(s) were likely of a practical bent of mind: they may well have been more concerned with expressing an intention in ways likely to have been understood in the context of the relevant industry and industrial relations environment than with legal niceties or jargon. Thus, for example, it is justifiable to read the award to give effect to its evident purposes, having regard to such context, despite mere inconsistencies or infelicities of expression which might tend to some other reading. And meanings which avoid inconvenience or injustice may reasonably be strained for. For reasons such as these, expressions which have been held in the case of other instruments to have been used to mean particular things may sensibly and properly be held to mean something else in the document at hand. But the task remains one of interpreting a document produced by another or others. A court is not free to give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award. Deciding what an existing award means is a process quite different from deciding, as an arbitral body does, what might fairly be put into an award. So, for example, ordinary or well-understood words are in general to be accorded their ordinary or usual meaning. See also: Transport Workers' Union of Australia v Linfox Australia Pty Ltd [2014] FCA 829 at [30]-[31], (2014) 318 ALR 54 at 58-59 per Tracey J. The task of construing the terms of an award or enterprise agreement "begins with a consideration of the ordinary meaning of its words" but those words "must not be interpreted in a vacuum divorced from industrial realities": City of Wanneroo v Australian Municipal, Administrative, Clerical and Services Union [2006] FCA 813 at [53] and [57], (2006) 153 IR 426 at 438-439 and 440 per French J (as his Honour then was) ("Wanneroo"). 17 The general approach to the interpretation of enterprise agreements has more recently been summarised by Tracey, Bromberg and Rangiah JJ in WorkPac Pty Ltd v Skene [2018] FCAFC 131, (2018) 264 FCR 536 at 580 as follows: [197] The starting point for interpretation of an enterprise agreement is the ordinary meaning of the words, read as a whole and in context: City of Wanneroo v Holmes (1989) 30 IR 362 (Holmes) at 378 (French J). The interpretation "turns on the language of the particular agreement, understood in the light of its industrial context and purpose": Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 (Amcor) at [2] (Gleeson CJ and McHugh J). The words are not to be interpreted in a vacuum divorced from industrial realities (Holmes at 378); rather, industrial agreements are made for various industries in the light of the customs and working conditions of each, and they are frequently couched in terms intelligible to the parties but without the careful attention to form and draftsmanship that one expects to find in an Act of Parliament (Holmes at 378-379, citing George A Bond & Company Ltd (in liq) v McKenzie [1929] AR (NSW) 498 at 503 (Street J)). To similar effect, it has been said that the framers of such documents were likely of a "practical bent of mind" and may well have been more concerned with expressing an intention in a way likely to be understood in the relevant industry rather than with legal niceties and jargon, so that a purposive approach to interpretation is appropriate and a narrow or pedantic approach is misplaced: see Kucks v CSR Ltd (1996) 66 IR 182 at 184 (Madgwick J); Shop, Distributive and Allied Employees' Association v Woolworths SA Pty Ltd [2011] FCAFC 67 at [16] (Marshall, Tracey and Flick JJ); Amcor at [96] (Kirby J). It is that approach which has been adopted in the present proceeding.

[8]

The 18 March meeting 23 There was some uncertainty as to whether the meeting held on 18 March 2020 at 5.00pm took the form of two separate meetings - with the Jetstar meeting being held at the conclusion of the meeting with Qantas. But whether there was one or two meetings matters not. There is no doubt that a meeting was held on 18 March 2020 and no doubt as to the subject matters then outlined to those in attendance. 24 At the meeting held on 18 March 2020, those representing Qantas were: Mr Andrew David, CEO, Qantas Domestic and Freight; Mr Tino La Spina, CEO, Qantas International; Mr Christopher Snook, Executive Manager, Qantas Engineering; Mr Peter Smith, Head of Industrial Relations, International and Engineering for Qantas; Mr Ian Oldmeadow, Industrial Consultant; Mr John Walker, Head of Line and Intermediate Maintenance Qantas Engineering; and Ms Sonia Millen, Executive Manager Industrial Relations. Those representing the Engineers Association were: Mr Rod Wyse, a LAME employed by Qantas and Federal President of the Engineers Association; Mr Mark Gant, Duty Maintenance Manager employed by Qantas and Engineers Association Trustee; and Mr Glynn Sowter, an employed Industrial Officer. 25 It would appear that immediately after the first part of the meeting relating to Qantas concluded (at around 5.30pm), the same participants from the Engineers Association met with the following Jetstar representatives: Ms Mariella Zanello, Head of Employee Relations; Mr Gareth Evans, CEO, Jetstar Group and Jetstar Airways; Mr David Wells, Head of Maintenance, Engineering; and Ms Justine Oldmeadow, Industrial Consultant. Also present at this latter part of the meeting on behalf of QantasLink were: Mr John Gissing, Group Executive, Associated Airlines and Services; Mr Dave Delahay, Manager Maintenance Operations, Engineering Regional Airlines; Mr Michael O'Neill, Head of Industrial Relations, Associated Airlines and Services. 26 The meeting can properly be characterised as a "briefing" in which either Mr Smith or the relevant Jetstar representatives outlined the situation confronting Qantas and Jetstar respectively. The meeting seems very much to have been a joint meeting with the two airlines, although at some point the meeting shifted its attention to Jetstar alone. 27 There was substantial agreement as to what was said at that meeting. 28 On Mr Smith's account, the meeting lasted about 30 minutes and the "following key topics" were discussed: (a) the impact of the coronavirus on Qantas Group operations, including the dramatic and unprecedented decline in demand for travel; (b) the Qantas Group had effectively lost international flying and a majority of its domestic flying; (c) for reasons beyond the Qantas Group's control, there was no useful work for a significant number of employees; (d) Qantas Group companies (including Qantas and Jetstar) would need to stand down employees without pay when they could not be usefully employed; (e) stand down notices would be issued to employees over the coming week and would vary in timeframe for employees, but the relevant period for the stand downs was until 31 May 2020, subject to continual review; (f) employees would have options to take annual and long service leave during any stand down; and (g) information about the amount of accrued annual leave, long service leave and days in lieu that were held by engineering employees. 29 On the following day, Mr Mark Gant (a Qantas LAME and a member of the Engineers Association) sent an email to the "Executive Committee and Industrial Staff" of the Engineers Association setting forth his account of the "key points" raised at the 18 March 2020 meeting, as follows (without alteration): Hi All, We met with Qantas Group management late this afternoon followed by Jetstar/Qantas Link. The key points are as follows: • The Qantas Group will enact section 524 of the Fair Work Act under emergency provisions based on there being no "useful work" for its employees due circumstances beyond their control. • This allows them to stand down staff. • This applies to all Qantas Group staff. • The program is aimed at preserving jobs and cash. • Wages are $75m per week so it doesn't take long to run out of $$$. • The reasons are obvious - International reduced to 10% ops and will likely go to 0% • Domestic reduced to 40% in QF and 30% in JQ • At some stage tomorrow the networks will publish a flying schedule and each individual business unit will determine the head count required to facilitate operations. • All surplus head count will be stood down on a rotational basis yet to be determined. • The head count required and skill/qualifications has also not yet been determined. • This "plan" is programmed for a 2 month duration. • If selected for stand down the employee will access the following: o Access to EAP. o Be allowed to use their annual leave, LSL, 20th days, DILPH during that period to allow them to still be paid. o If you have a low leave balance you will be able to access up to an additional 4 weeks in arrears. o Years of service will continue along with accruals of entitlements. o Employees will be allowed to seek external employment. • Head count determination will be on a port by port basis.

[9]

The 20 March meeting 30 The meeting on 20 March 2020 was held at the invitation of Mr Peter Smith. In addition to Mr Smith, those representing Qantas at that meeting were: Mr Christopher Snook; Mr John Walker; Mr Ian Oldmeadow; and Ms Alison Hamilton, National People and Culture Manager, Line and Intermediate Maintenance. Those attending on behalf of Jetstar were: Mr David Wells; Mr Craig Reid, Senior Manager AMO; Ms Wendy Marcos, People Manager; Mr Maciek Zielinski, Industrial Relations Manager; and Ms Mariella Zanello. None of these people were local Line Maintenance Managers, Duty Operations Managers or Supervisors of any Qantas or Jetstar employees covered by either the Qantas Agreement or the Jetstar Agreement. 31 Those representing the Engineers Association were: Mr Stephen Purvinas, Engineers Association Federal Secretary; Mr Rod Wyse; Mr Mark Gant; and Mr Glynn Sowter. 32 During the meeting, Mr Purvinas maintained that there was useful work that could be performed by LAME members, including such tasks as work directed to: aircraft defects; aircraft repairs; minimum equipment lists; corrosion repairs; and heavy maintenance. 33 On Mr Smith's recollection of the 20 March 2020 meeting, Mr Purvinas did "most of the talking on behalf of the ALAEA" and argued that "Qantas could not stand down LAMEs when there was useful work for them to perform". He also recalled that "Mr Purvinas alleged that there was useful work that could be performed by ALAEA members", including those "tasks" outlined by Mr Purvinas. In response to these topics, Messrs Walker and Snook responded with words to the effect: … that work is not required or useful in all of the circumstances … 34 According to Ms Zanello, she could recall Mr Purvinas asserting that Qantas could not stand down LAMEs when there was useful work for them to perform, but she could not recall Mr Purvinas making any similar allegation or assertion directed at Jetstar. On her recollection, the only issues relating to Jetstar which were raised by Mr Purvinas were directed to: what work was there at Newcastle Heavy Maintenance - to which Mr Reid responded by saying that Jetstar was "still working through [its] Heavy Maintenance requirements"; and how the "available useful work" was to be determined - to which Mr Zielinski responded by saying that the "full-time equivalent engineer requirements [were] based on the work that Jetstar requires to be performed" with Mr Purvinas asking for the numbers of full-time LAMEs required. On her recollection, at "no stage during this meeting … did Mr Purvinas, or any of the other ALAEA representatives, identify any disagreement or dispute with the stand downs at Qantas and/or Jetstar, beyond the question of 'useful work'".

[10]

The 25 March letter 35 The 25 March 2020 letter from the Engineers Association was addressed to Mr Smith and stated as follows (without alteration): Dear Peter, I write in relation to the stand downs of ALAEA members employed by Qantas and Jetstar (Stand Downs). The Stand Downs have been actioned in accordance with clause 14.6 of the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 (LAME 10) and clause 30.5 of the Jetstar Airways Engineering Maintenance Enterprise Agreement 2018 (JAEMEA 18) respectively. It is worthy to note that the above-mentioned clauses are very similar to section 524 of the Fair Work Act 2009 (Cth). As an experienced industrial relations practitioner, you would be acutely aware that Stand Downs cannot occur unless Qantas and Jetstar (Qantas Group) can demonstrate that (with emphasis appearing in underline): • there is a stoppage of work; and • the cause of the stoppage is one of which the Qantas Group cannot reasonably be held responsible; • Qantas Group employees being stood down cannot be usefully employed (which is not limited to the work that LAMEs usually perform); The ALAEA is of the position that the Qantas Group can still provide useful employment (Useful Employment) to its LAMEs. The meaning of the term Useful Employment is well settled in law. It is ultimately a question of fact as to whether Useful Employment exists. Further, provided an employer is able to obtain some benefit or value from the work that could be performed by an employee, then the employer cannot stand down its employees. As you will recall Useful Employment was specifically identified and communicated to the Qantas Group during the course of our meeting of 20 March 2020. The Useful Employment that was identified by the ALAEA for its members included the following: • Aircraft Defects (understood to be at a historic high) • Aircraft repairs • Minimum Equipment Lists (time-limited deferred defects) • Corrosion repairs • Heavy maintenance Ultimately, the Qantas Group is a financially buoyant entity, and it has significant liquidity in terms of assets from which it can draw upon. Unlike most of its competitors, it is the view of the ALAEA that Qantas is in a position where it can absorb the current economic downturn and therefore accommodate the ALAEA's request with respect to the identified Useful Employment. We invite Qantas to meet further with ALAEA to discuss work that could keep LAMEs Usefully Employed in the coming period. At that meeting we would present additional work our members have already identified for this purpose. In conclusion, should the Qantas Group not accede to the request of the ALAEA, Qantas are put on notice that the ALAEA considers the Stand Downs to be unlawful. As a consequence, the ALAEA will reserve its right to take the requisite legal action for any unlawful Stand Downs, including, but not limited to, the recovery of underpayments. (footnotes omitted). 36 The letter was followed up by an email from Mr Smith suggesting a "teleconference tomorrow, Friday 27 March 2020 at 4pm to hear what it is that the ALAEA wishes to put about LAME work". Mr Purvinas responded, agreeing to the proposed meeting and continuing: …We have submitted with FWC now. Not sure when they will list so if it coincides with the meeting that would also be ok.

[12]

Discussions between Jetstar employees & senior management 39 Prior to the meeting held on 18 March 2020, a LAME employed by Jetstar, Mr Robert Toovey maintained that on or about 17 March 2020 his Duty Operations Manager (Mr Adam Teat) came onto the hangar floor at Newcastle where he and a number of others were working and said words to the effect of: Mr Teat: "Hey guys I have been informed that stand downs are imminent due the grounding of Jetstar aircraft." 40 On 19 March 2020, Mr Toovey further deposed to the following exchange between himself and Mr Teat: [Mr Toovey]: "Adam regarding the stands downs and the fact that there is no work booked in for April, we don't agree with them. Why can't we cycle some aircraft through the hangar to acquit any outstanding work? We can also bring forward the service bulletins so there is no need for them to be done during the C-Checks?" Mr Teat: "Bob you need to bring this up with senior management as it is above my pay grade." Thereafter, on Mr Toovey's account there was the following exchange between himself and his Base Maintenance Manager, Mr Gregory Hutchinson: [Mr Toovey]: "Greg, about the stand downs, we don't agree with them, there's work that can be done. Why can't we bring the Non-Mandatory service bulletins forward and then they don't have to be done during C Checks? This will get the aircraft back into service early making us look good." Mr Hutchinson: "The Senior AMO makes that decision along with planning's advice. You'll have to take it up with senior management, it's out of my hands." Mr Hutchinson occupied a more senior managerial position than Mr Teat. 41 There was a divergence in the evidence between (on the one hand) Messrs Teat and Hutchinson, and (on the other hand) Mr Toovey. 42 Insofar as the words attributed to Mr Teat on or about 17 March, Mr Teat maintained that he never said those words and that he "did not even know of the prospect of stand downs [of LAMEs]… at the Newcastle facility at the time". Mr Hutchinson simply observed that as of 17 March as far as he was aware, "no-one from Jetstar management at the Newcastle facility knew of any proposed stand downs for LAMEs". 43 In respect to the 19 March exchange, Mr Teat maintained in both his affidavit and in cross-examination that Mr Toovey never said "we don't agree with them". On Mr Teat's account of the conversation, Mr Toovey was merely "asking questions" rather than "disputing" the position being taken by Jetstar. Had Mr Toovey told him he was going to dispute the stand downs, in his affidavit Mr Teat maintained that he "would have asked Mr Toovey to send [him] an email or put his dispute in writing" as was his "usual practice with all disputes (especially from Mr Toovey) so that it [could] be appropriately (and accurately) recorded" and so that he could "elevate the dispute up the chain if" he needed to. That part of his cross-examination included the following exchange: And Mr Toovey, in the conversation you had with him on the 19th was questioning that decision, wasn't he, whether or not there was work that could be done?--Yes, yes. Yes. He was making suggestions about work that could have been brought forward. Do you agree with that?--Yes, yes. At this point, Jetstar was saying there is no work to be done and Mr Toovey was saying to you I think there is work to be done. That's a fair summary?--Yes, yes. And if Mr Toovey was right, if there was work for LAMEs to do, they wouldn't need to be stood down. That's right, isn't it?--If there was work to be done? Yes. And that was the point Mr Toovey was making. That he thought there was work to be done so the stand downs didn't need to happen. Do you agree with that? --Yes, yes. So the point was that he didn't agree with what Jetstar was doing, at least in part. That's right, isn't it? --The court was asking - sorry, Mr Toovey was asking questions around the maintenance. Yes. And the questions were, as we've just discussed, directed at challenging the conclusion that there was no useful work for you. Do you agree with that? --The conversation I had with Mr Toovey, he was asking a question, so - - - It was - and you weren't - the matters he was proposing were totally outside of your authority, weren't there? --Yes, I - yes. I spoke to - when I spoke to Mr Toovey I told him that we … Mr Teat, this is quite difficult with the video. If you could just confine yourself to the question. If I need an explanation, I will ask you or Mr Parry will ask you later. So the matters Mr Toovey were discussing, they were decisions made by senior management, weren't they? --Correct. And you told him that. You referred him to senior management? --Correct. You told him something like, "This is above my paygrade"? --Incorrect. Okay. And it is the case that Mr Toovey did not say anything along the lines of, "Hello, Adam. I am disputing the standdowns under clause 20 of the agreement," did he? --No. But if he had, your response would have been the same. You would have referred him to senior management? --I would have asked Mr Toovey to send me an email in writing with his dispute. Which you then would have referred to senior management? --Correct. Yes. Because you have absolutely no ability to resolve any dispute, big or small, about the standdowns at that point, do you? --No. 44 On Mr Hutchinson's account of the exchange which occurred on 19 March 2020, he was "quite confident" that Mr Toovey did not say the words "[w]e don't agree with them" and that he did not say "it's out of my hands". Mr Hutchinson also maintained in his affidavit that Mr Toovey at no time said that he did dispute or was going to dispute his stand down or that of anyone else. In his cross-examination Mr Hutchinson remained committed to his assessment of the discussion between himself and Mr Toovey as one in which he "didn't feel that it was a level of disagreement" as opposed to "an open discussion". This part of the cross-examination thus proceeded as follows: On or around the 19th you had a discussion with Bob Toovey; you recall that?--Yes. Yes. And he was - he came up to talk to you about stand downs, didn't he? --He come up to talk to me about work that he felt would be meaningful work … Yes? -- … in regards to the stand downs. Yes. Yes. So the reason he's talking about work that could be done was to say, "If we do this, they don't have to be stood down," basically? --He suggested that other work could be conducted to reduce the amount of stand downs. Yes. And he's suggesting - sorry, I withdraw that. What he was doing was disagreeing with the Jetstar position that there wasn't any work that could be done? --I'm not sure if he was disagreeing. He was making a point that he felt that other work could be conducted. Yes. And Jetstar's position in that respect is different; do you understand that? --That is correct. So Jetstar is saying one thing. Mr Toovey is saying the other. They were disagreeing, weren't they? --I wouldn't say there was necessarily a disagreement. It was a - a very informal discussion around other work that may be performed to reduce the amount of stand down. What for you, Mr Hutchinson, is the difference between a discussion saying there's work that can be done, we don't need to stand people down, and a disagreement about standing people down? What do you mean? --At - at the time, as you can imagine, there's many people with many concerns and many conversations had around what the - I suppose, what was in store for the - for the site, in particular. So it was one of many conversations that were had with employees at the particular time so I didn't see it as a disagreement as such. It was just an open discussion around what he determined would be meaningful work and what the company had already determined was meaningful work. Okay. And they - again, their positions in that respect were different? --Correct. All of this is way above your level of authority, really, isn't it? --Yes. Those decisions are made, obviously, from a - a group senior level around the amount of work to be conducted and what falls within the category of meaningful work. And that's what you told Mr Toovey? --I told Mr Toovey, yes, that those decisions are made at a higher level because the planning is conducted by a different part of the business. You've read Mr Toovey's statement, I think, Mr Hutchinson? --Yes ... have. From reading that, you now understand that Mr Toovey does disagree with Jetstar's right to stand down employees? --After reading that, I understand that he does disagree. And after that you now understand that he disagreed at the time he had that conversation with you?--At the time I didn't feel that it was a level of disagreement. It was just an open discussion. Yes. Reading Mr Toovey's statement now, you understand that he says at the time he was disagreeing. Do you understand that? --I agree - I understand that's what he's saying now. Correct. Yes. It's possible in that context that you've simply misunderstood Mr Toovey? --No. I felt that I had clearly understood his point … If you had …? … at the time. If you had understood him to be disagreeing, you would have referred him to senior management, wouldn't you?--If he had wanted to formalise a dispute, which at no time he mentioned any - any form of dispute or disagreement, as such, we would escalate that to the next level. 45 Given this divergence of evidence, it is concluded that: other than perhaps as a reflection on the credibility of Mr Toovey's evidence more generally, it matters little whether Mr Teat said the words attributed to him by Mr Toovey on or about 17 March 2020 - although, if the matter need be resolved, Mr Teat's account would have been preferred; and in respect to the account of what was said on 19 March 2020, it is concluded on balance that Mr Toovey did not say words to the effect "we don't agree with them" - that being very much the evidence of Messrs Teat and Hutchinson. But it is also concluded that on 19 March 2020 Mr Toovey was making manifestly apparent to both Mr Teat and Mr Hutchinson that: he was expressing a view or an opinion diametrically opposed to that being advanced by Jetstar - neither Mr Teat nor Mr Hutchinson could have been left in any doubt that Mr Teat was maintaining that there remained useful work which could be performed by LAMEs.

[13]

CLAUSES 6 & 20 - MANDATORY PRE-CONDITIONS 46 Underlying the submissions advanced on behalf of Qantas and Jetstar are questions as to the proper construction and application of: clause 6 of the Qantas Agreement and clause 20 of the Jetstar Agreement; and the term "dispute" or the phrase "dispute … about matters" or "dispute relating to any matter", as that term or those phrases are employed in one or other of those Agreements and the Form 10 Applications as made to the Commission. 47 Although variously expressed, the submission as made on behalf of Qantas centred upon the manner in which that term or the phrase "dispute … about matters" was to be identified as that term or phrase is employed in cl 6. On its submission, cl 6 required: there to be a "meeting and conferring" between an employee and the employer's supervisor "on the matter" (cl 6.1.1); and if "the matter is not resolved": there needed to be "further discussions between the employee and more senior levels of management" (cl 6.1.2). It was only if these two mandatory "preconditions" were satisfied that, on the Qantas approach: the "matter" could be referred to the Commission (cl 6.1.3). If this series of submissions were to be accepted, Qantas contended that: there had been no compliance, on the facts, with either cl 6.1.1 or cl 6.1.2; or, even if there had been compliance: the only "dispute" or "matter" the subject of cl 6 which could be referred to the Commission and be there dealt with was a "dispute" as to whether LAMEs could be "usefully employed". 48 In respect to cl 20 of the Jetstar Agreement, it was contended on Jetstar's behalf that the mandatory "preconditions" to be found in the requirements were that there need be a "dispute" which must: "first be discussed" and thereafter: given "further consideration" and a "response". Clause 20 of the Jetstar Agreement not only employs slightly different language to that in the Qantas counterpart; cl 20 also imposes time limits within which steps are to be taken. 49 In very summary form, the Engineers Association submitted with respect to Qantas that: cl 6 of the Qantas Agreement did not impose mandatory pre-conditions; but that, in the event that that clause did impose mandatory pre-conditions: those pre-conditions had been satisfied on the facts. With respect to Jetstar, the Engineers Association submitted that: "it is not necessary to examine the text" of cl 20 of the Jetstar Agreement as to whether it contains "mandatory preconditions" because "strict compliance was in fact achieved". The Engineers Association further submitted that: the Fair Work Commission could "deal with" matters extending beyond whether the LAMEs could be "usefully employed" and could also "deal with" the "Stoppage Issue" and the "Causation Issue"; and the airlines were estopped from denying the jurisdiction of the Commission.

[14]

Mandatory pre-conditions or pre-requisites 50 The opening barrier sought to be erected by both Qantas and Jetstar in the path of the Commission "dealing with" the applications made to it by the Engineers Association was that each of cl 6 of the Qantas Agreement and cl 20 of the Jetstar Agreement imposed mandatory pre-requisites or pre-conditions which needed to be satisfied prior to the exercise of any power to refer a "matter" or a "dispute" to the Commission. 51 In the case of the Qantas Agreement, these preconditions were to be found in cll 6.1.1 and 6.1.2; in the case of the Jetstar Agreement, the preconditions were to be found in cll 20.1 and 20.2. 52 With reference to the terms of the Qantas Agreement, the submission advanced on behalf of the Engineers Association seemed to vary between a submission that: "[t]here are no textual indications that strict compliance is required" through to a submission that: clause 6.1.3 is ambiguous such that it should be read as providing "[i]f the matter cannot be resolved" through the steps set forth in cll 6.11 and 6.1.2 "or otherwise", rather than "if the matter cannot be resolved by the previous steps…". 53 The former argument, with respect, is not an argument that there need not be compliance with cll 6.1.1 and 6.1.2 - rather, it is an argument that there need be compliance but not "strict compliance". Rephrased in that manner, it is concluded that substantial compliance with these provisions is sufficient. 54 Greater difficulty is expressed with the latter argument. 55 Difficulty is expressed in reaching a conclusion that there need not be any compliance - be it strict or substantial compliance - with cll 6.1.1 and 6.1.2 of the Qantas Agreement or cll 20.1 and 20.2 of the Jetstar Agreement. Although both Enterprise Agreements contain a power to stand down employees and thus contemplate that "disputes" may arise in respect to both a single or a small number of employees and also a more substantial number of employees, cll 6 and 20 nevertheless remain drafted in a manner more readily susceptible of application to a more confined dispute than has arisen in the present case. Even so, any argument that there need not be even substantial compliance with those clauses where a large number of employees have been stood down for a common reason is not self-evidently correct. To attempt to construe those terms as meaning that a matter may be referred to the Commission if it cannot be resolved through the staged process expressly set forth "or otherwise" is, with respect, to blatantly and impermissibly "give effect to some anteriorly derived notion of what would be fair or just, regardless of what has been written into the award": Kucks (1996) 66 IR at 184 per Madgwick J. 56 It is concluded that both cl 6 of the Qantas Agreement and cl 20 of the Jetstar Agreement impose pre-conditions which must be satisfied before a "dispute" or "matter" can be referred to the Commission. So much, it is respectfully concluded, follows simply from the manner in which each of the clauses is drafted. Each of the clauses presents a staged process of dispute resolution. 57 Such a conclusion is only reinforced when regard is had, in the case of the Qantas Agreement to such phrases as: the procedure "will be as follows" (cl 6.1); and the parties "must arrange" (cl 6.1.2). 58 Similarly, cl 20 of the Jetstar Agreement is directed to: "a dispute relating to any matter arising under this Agreement" and goes on to direct attention to: the need for the "dispute" to be "discussed" and the need for a "decision" (cl 20.1). The mandatory nature of these requirements in the Jetstar Agreement is reinforced by reference to the phrase that: the dispute resolution procedure "will be followed" (cl 20), as opposed to: the conferral of a discretion ("may") to "refer the matter" to more senior levels of management for "further consideration" and the need for a "response" (cl 20.2). 59 It follows that with reference to both cl 6 of the Qantas Agreement and cl 20 of the Jetstar Agreement - but using cl 6 as the example - it is difficult to resist a construction of those clauses which does not require an identification of: the "dispute"; the occasion on which there was an initial "meeting and conferring on the matter" between an employee and their supervisor (cl 6.1.1); and thereafter: the occasion on which there were "further discussions" between the employee and "more senior levels management" (cl 6.1.2). It is equally difficult to resist a conclusion that that "meeting and conferring" and those "further discussions" must be directed to the same "matter". 60 But such conclusions say nothing as to what would be sufficient or substantial compliance with each of the requirements imposed by those two clauses. Such conclusions say nothing as to the degree of precision there need be in the identification by an employee of a "dispute" and say nothing as to the degree of formality or informality with which this "dispute" may be raised at a "meeting" or "discussed".

[15]

A flexibility of meaning 61 In very summary form, it is concluded that each of these requirements must be construed with a degree of flexibility consistent with the industrial context in which the two clauses were drafted: cf. Kucks (1996) 66 IR at 184 per Madgwick J; Wanneroo [2006] FCA 813 at [57], (2006) 153 IR at 440 per French J. 62 Self-evidently, central to both cl 6 of the Qantas Agreement and cl 20 of the Jetstar Agreement is the necessity for there to be a "dispute". That word is a common word of everyday usage. The New Shorter Oxford English Dictionary defines the word as follows: dispute (noun) 1 a) A logical argument. rare. b) An oral or written discussion of a subject in which arguments for and against are put forward and examined. 2 An instance of disputing or arguing against something or someone, an argument, a controversy, esp. a heated contention, a disagreement in which opposing views are strongly held. 3 The act of disputing or arguing against something or someone; controversy, debate. 4 Strife, contest; a fight, a struggle. dispute (verb) 1. Contend with opposing arguments or assertions; argue; debate hotly, quarrel, have an altercation. … The essence of that meaning is that there is an occasion during which there is an exchange of "opposing views" or positions - the necessity for there to be an exchange of positons "for and against" a particular result. A dispute may involve a "heated" exchange or "argument" - but there is no necessity for a dispute to be heated or confrontational. Indeed, in an industrial context it would generally be preferable for there to be no escalation to the level of a "quarrel" or "altercation". 63 There is no reason why the word should be given anything other than its ordinary English meaning when employed in each of the two Agreements. 64 But cll 6 and 20 should, with respect, be construed in a manner which gives effect to the myriad of circumstances in which a "dispute" may arise and the many different circumstances in which a "dispute" may be sought to be resolved during the course of a "meeting" or "discussions". To confine the construction of these clauses only to those circumstances involving an individual employee and a discrete personal "dispute" that that employee may have would, with respect, strip cll 6 and 20 of much of their industrial utility. In circumstances where a "dispute" may affect a great number of individual "employees", nothing in cl 6.1.1 nor cl 6.1.2 nor cll 20.1 and 20.2 necessarily dictates that the "dispute" which is sought to be resolved requires the separate identification of an individual employee or his individual supervisor. Indeed, it would be a surprising construction of the "dispute resolution procedures" if a general "dispute" affecting a great number of employees could not be the subject of referral to the Commission in the absence of each individual employee "meeting and conferring" with that employee's supervisor, and each individual dispute being thereafter the subject of "further discussions" with "more senior levels of management". 65 Just as the term "dispute" is to be given a flexibility of meaning such that it can apply to a single or small group of employees or a larger number of employees and simply involving those employees putting forward their commonly held "opposing" view as to the position of an employer, the terms "meeting" and "discussion" should equally be construed with a degree of informality and flexibility. The requirement that there be a "meeting" or a "discussion" obviously does not necessarily involve the necessity for a formally convened meeting or a formal discussion. An issue giving rise to a grievance on the part of an employee or group of employees may best be sought to be resolved informally and during (for example) a lunch-break at which the employee(s) raise their concerns with a manager or supervisor. 66 Although Counsel for Qantas and Jetstar did contend in oral submissions that "there is a degree of formality required to properly raise and engage a dispute", it was not understood that Qantas and Jetstar were suggesting that a formally convened meeting or discussion was required. 67 Qantas and Jetstar nevertheless did contend that there was some degree of formality or inflexibility required - the "dispute", it was said, had to be "properly articulated" and at any "meeting" there had to be at least some understanding that those participating knew they were in a "dispute meeting". "Casual conversations", Qantas and Jetstar contended, were not sufficient. 68 Qantas and Jetstar readily embraced, not surprisingly, a characterisation of the Engineers Association's case as one of "reverse engineering". So approached, on the facts of the present case, Qantas and Jetstar contended that there never had been a "Stage 1 meeting" (or a meeting which complied with cl 6.1.1 or cl 20.1) in which those participating knew that that was what was occurring. In order to satisfy the requirement imposed by those provisions, on the case advanced by Qantas and Jetstar, the search was on for the Engineers Association to "reverse engineer" from the facts some occasion which could arguably fall with the terms of those provisions. 69 The necessity for some degree of formality in the construction and application of the two clauses, on the approach of Qantas and Jetstar, necessarily followed not only from the language employed in those two provisions but also from the prospect that non-compliance with these provisions potentially exposed the airlines to the imposition of a pecuniary penalty. 70 Notwithstanding a more generally expressed conclusion that the relevant clauses are to be construed with some degree of informality and flexibility, the submission advanced on behalf of Qantas and Jetstar that there needed to be some minimum content to these provisions is accepted. That minimum content, it is concluded, is that there needed to be an occasion on which those participating in the meetings had to know that there were opposing views being expressed and that those opposing views needed to be resolved. It is not necessary, with respect, for those participating in the meeting or discussion to know that they were participating in a meeting which formed part of a dispute resolution procedure. To fall within cl 6 of the Qantas Agreement or cl 20 of the Jetstar Agreement, there needed to be the raising by an employee or a group of employees of an "opposing view" to that of their employer and that view had to be raised at a meeting (however flexibly that term is to be construed) at which it was known or could reasonably be inferred that each of the "opposing" sides knew that there was a dispute in need of resolution. 71 On the facts, it is concluded in respect to the Qantas part of the present proceeding that: there was a "meeting and conferring" which satisfied the requirements imposed by cl 6.1.1 of the Qantas Agreement; and there were "further discussions between the employee and more senior levels of management" which satisfied the requirements imposed by cl 6.1.2 of that Agreement. Similarly, it is also concluded in respect to the Jetstar part of the present proceeding that: notwithstanding the finding that Mr Toovey did not employ the language of "we don't agree" in his conversations with Mr Teat and Mr Hutchinson on 19 March 2020, those conversations nevertheless satisfied the requirements imposed by cl 20.1 of the Jetstar Agreement; and the "dispute" was not then resolved and the subject matter of the "dispute" was addressed by "more senior levels of management" which satisfied the requirements of cl 20.2 of that Agreement. Each of these conclusions should be briefly expanded upon.

[16]

The Qantas dispute 72 Notwithstanding denials from Counsel for the Engineers Association, it is respectfully considered that before this Court there was a considerable degree of "reverse engineering" in seeking to distil from the events that took place in mid/late March 2020 those occasions or meetings which would satisfy the requirements of cl 6. 73 The first occasion upon which the Engineers Association sought to identify those "steps" which satisfied the dispute resolution requirements imposed by cl 6 was in the Form 10 Application as filed with the Commission. Clause 2.4 of that Application thus provided as follows: 2.4 What steps have already been taken to resolve the dispute under the dispute resolution procedure? … 1. Meetings on 18 and 20 March. 2. Correspondence from ALAEA to Qantas on 25 March 2020. The meeting held on 18 March 2020, it is concluded, could not satisfy the requirements of cl 6.1.1 of the Qantas Agreement. That was not a meeting at which any employee was, or any group of employees were, communicating an "opposing view" to that being announced by Qantas. That meeting can best and accurately be described as a meeting at which announcements were made as to the necessity to stand down employees. Although a "dispute" may well have been apprehended as looming in the immediate future, given the announcements made, there was as at 18 March 2020 nothing then in "dispute". 74 Presumably in recognition of the difficulty in characterising the 18 March 2020 meeting as the occasion upon which cl 6.1.1 was satisfied, before this Court Counsel for the Engineers Association placed reliance upon either or both of the following two events, namely: the circumstances surrounding Mr Gant himself - he being a person who was both stood down and who sought to challenge that decision; and/or the conversations between 18 and 20 March 2020 between Mr Gant and other employees (including Mr Baldacchino) who "questioned if Qantas could stand [them] down". The former event can be summarily rejected. No matter how flexibly cl 6.1.1 may be construed, it is difficult to construe Mr Gant's circumstances as an occasion upon which he was "meeting and conferring" with himself about his own circumstances, or conveying his own views to LAMEs below him in the hierarchy. 75 The conversations recounted by Mr Gant between 18 and 20 March 2020 are, however, sufficient compliance with cl 6.1.1. Mr Gant was the "supervisor" of the employees with whom those conversations were held, including Mr Baldacchino. Notwithstanding the form in which those conversations were expressed in Mr Gant's affidavit and the objection taken to this part of Mr Gant's affidavit, it is concluded, sufficient "weight" can be given to that part of the evidence to find, on the balance of probabilities, that: there were discussions about the proposed stand downs; in addition to Mr Baldacchino, there were a number of other employees with whom Mr Gant had these discussions; whatever else was discussed, the employees were questioning if Qantas could stand them down; the employees wanted to challenge the actions proposed by Qantas; and there was a "dispute" which Mr Gant could not "resolve". That is sufficient, it is respectfully concluded, to satisfy the requirements of cl 6.1.1 of the Qantas Agreement. 76 Greater difficulty is encountered, however, in distilling from the facts the occasion on which there were "further discussions between the employee and more senior levels of management" for the purposes of cl 6.1.2. Insofar as cl 6.1.2 is concerned, Counsel for the Engineers Association relied upon: the meetings held on 20 and 24 March 2020; the 25 March 2020 letter; and a meeting held on 27 March 2020. It is sufficient to go no further than the meeting held on 20 March 2020 to conclude that at that meeting the subject matter of the dispute was canvassed at more senior levels of management within Qantas. 77 As a matter of substance, Qantas employees were questioning whether Qantas "could stand [them] down". And, at the 20 March 2020 meeting, the Engineers Association on behalf of its members were maintaining that the employees could not be stood down because they could be "usefully employed". The difficulty with construing this meeting as satisfying the requirements of cl 6.1.2 is, perhaps, construing it as a meeting during which "the employee[s]" who had first raised their concerns with Mr Gant were "the employee[s]" whose individual grievances were then sought to be resolved. There was, for example, no specific reference at the meeting on 20 March 2020 to the personal circumstances confronting Mr Gant or Mr Baldacchino. It is concluded, however, that cl 6.1.2 did not call for such a level of particularity in the facts of the present case. In circumstances where the grievances of an individual employee or a small number of employees are the subject of the "meeting and conferring" for the purposes of cl 6.1.1, it may well be that the "further discussions" which cl 6.1.2 required must be a meeting at which the individual grievances of those same "employee[s]" are sought to be resolved. But where the grievance and the source of the dispute raised by a small number of employees affects a substantially larger number of employees, it is concluded that cl 6.1.2 is satisfied if there is an occasion on which that common grievance or dispute is addressed by "more senior levels of management". The flexibility with which the terms of cl 6 are to be construed and, for present purposes, the flexibility with which cl 6.1.2 is to be construed, permits of such an approach. The concerns being addressed at the meeting on 20 March 2020 were with respect to all employees of a particular category, including those employees who first raised their concerns with Mr Gant. 78 Any uncertainty as to the "matter" being "further discuss[ed]" at the 20 March 2020 meeting is resolved by the terms of the 25 March 2020 letter. That letter unequivocally stated that the position of the Engineers Association was that "the Qantas Group can still provide useful employment … to its LAMEs". 79 It is thus concluded that the "preconditions" set forth in cl 6 of the Qantas Agreement have been satisfied such that the subject matter of that "dispute" could be referred to the Commission. Left aside for present purposes is the identification of the ambit of the "dispute" which, it has been concluded, went through the steps imposed by cl 6.

[17]

The Jetstar dispute 80 The same "reverse engineering" which characterised the identification of those occasions which satisfied the requirements of cl 6 of the Qantas Agreement also characterised the Engineers Association's identification of the occasions on which cl 20 of the Jetstar Agreement was satisfied. 81 When invoking the power of the Commission to "deal with" its dispute, in its Form 10 Application as filed with the Commission, Jetstar stated as follows: 2.4 What steps have already been taken to resolve the dispute under the dispute resolution procedure? … 1. Meeting on 18 March 2020. 2. Meeting on 20 March 2020. 3. Correspondence from ALAEA to Jetstar… 82 As with the Qantas Agreement, it is similarly concluded that the 18 March 2020 meeting could not satisfy cl 20.1 of the Jetstar Agreement. 83 Before this Court, Counsel for the Engineers Association placed reliance upon the exchange between Mr Toovey and Mr Teat on 19 March 2020. 84 In the context of the future stand downs which had been announced on the previous day, Mr Toovey was unequivocally (on his account) stating (inter alia) that he did not "agree" with the stand downs. But that part of Mr Teat's account of that conversation has been accepted in preference to that of Mr Toovey. And Mr Toovey's account of his conversation with Mr Hutchinson takes the matter no further for the reason that that part of Mr Hutchinson's account of the conversation has again been preferred to that of Mr Toovey. During the course of either conversation, it has been concluded that Mr Toovey did not say, in respect to the proposed stand downs, "we don't agree with them". 85 But the finding that Mr Toovey did not say to either Mr Teat or Mr Hutchinson that he did not "agree" with the stand downs does not preclude a conclusion that cl 20.1 of the Jetstar Agreement has been satisfied. For the purposes of cl 20.1, it is sufficient for it to be found that there be a discussion during which opposing views were being expressed; the fact that one or other of those persons participating in the discussion did not use such words as "I agree" or "I don't agree" does not of itself resolve the question as to whether the was a "dispute" which was "discussed". It is sufficient compliance with cl 20.1 for Mr Teat (or Mr Hutchinson) to be left in no doubt that Mr Toovey was expressing an opinion contrary to that being advanced by Jetstar. Compliance with that provision is a matter of substance not form. Compliance with cl 20.1 cannot be stripped of its characterisation as a "discussion" about a "dispute" which centred upon "opposing views" by a personal characterisation of the conversation as one during which Mr Toovey was simply "asking questions". It is sufficient, as Mr Teat accepted, for Mr Toovey to be "questioning that decision". Similarly, it matters not if Mr Hutchinson was "not sure if [Mr Toovey] was disagreeing" as opposed to Mr Toovey "making a point that he felt that other work could be conducted". 86 Clause 20.1 of the Jetstar Agreement, it is thus concluded, was satisfied by the conversation that occurred between Mr Teat and Mr Toovey on 19 March 2020 and also satisfied by the conversation between Mr Toovey and Mr Hutchinson on that date. 87 As with the Qantas conclusion, it is similarly concluded that cl 20.2 of the Jetstar Agreement was also satisfied by the joint meeting that took place on 20 March 2020. To the extent that cl 20.2 imposes a requirement that "the Employee may refer the matter to more senior levels of management for further consideration", there was no evidence that any "dispute" that Mr Toovey had with respect to the availability of work that could be performed was the subject of any "reference" from him to "more senior levels of management". But compliance with that requirement of cl 20.2 was satisfied, it is concluded, by the fact that those attending the 20 March 2020 meeting on behalf of Jetstar were "more senior levels of management", and the fact that the availability of work was then canvassed. The substance of compliance with cl 20.2 was satisfied, even if the "formalities" of compliance may not have been.

[18]

THE JURISDICTION OF THE FAIR WORK COMMISSION 88 The Fair Work Act provides in Pt 6-2 for the manner in which disputes may be dealt with by the Commission under that Act. 89 Within that Part, s 738 provides as follows: Application of this Division This Division applies if: (a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or (b) an enterprise agreement includes a term that provides a procedure for dealing with disputes, including a term referred to in subsection 186(6); or (c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or (d) a determination under the Public Service Act 1999 includes a term that provides a procedure for dealing with disputes arising under the determination or in relation to the National Employment Standards. 90 Section 739 provides for those circumstances in which the Fair Work Commission may "deal with a dispute". That section provides as follows: Disputes dealt with by the FWC (1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute. (2) The FWC must not deal with a dispute to the extent that the dispute is about whether an employer had reasonable business grounds under subsection 65(5) or 76(4), unless: (a) the parties have agreed in a contract of employment, enterprise agreement or other written agreement to the FWC dealing with the matter; or (b) a determination under the Public Service Act 1999 authorises the FWC to deal with the matter. … (3) In dealing with a dispute, the FWC must not exercise any powers limited by the term. (4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so. … (5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties. (6) The FWC may deal with a dispute only on application by a party to the dispute. In "dealing with" a dispute, the "task" of the Commission is "to determine the dispute referred to it by the parties and to make an award or determination which [is] binding on the parties because they [have] agreed to be so bound": Duggan v Metropolitan Fire and Emergency Services Board [2017] FCAFC 112 at [58], (2017) 251 FCR 1 at 17 per Tracey, Wigney and O'Callaghan JJ. 91 These provisions were preceded by comparable provisions in the Industrial Relations Legislation Amendment Act 1992 (Cth), the Industrial Relations Reform Act 1993 (Cth) and the Workplace Relations and Other Legislation Amendment Act 1996 (Cth): see Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2016] FCAFC 92 at [17] to [22], (2016) 244 FCR 178 at 184-186 per North, Jessup and Reeves JJ ("Endeavour Energy").

[19]

The power to arbitrate or to "deal with" a dispute 92 The Commission has "no general power of arbitration": Endeavour Energy [2016] FCAFC at [30], (2016) 244 FCR at 188-189. North, Jessup and Reeves JJ there went on to observe: [30] … the Commission may deal with a dispute by arbitration only if it is expressly authorised to do so under or in accordance with another provision of the FW Act. …. [31] Section 739(4) is such a provision. But it is limited in two ways. First, the parties must, by the relevant term in the agreement, have agreed that the Commission may arbitrate. And secondly, by subs (5), in the arbitration the Commission must not make a decision that is inconsistent with the FW Act or a fair work instrument that applies to the parties. Section 739(4), it may be noted, makes clear the Commission may only arbitrate "the dispute" in circumstances where the parties "have agreed" that it can do so. 93 It was common ground that cl 6 of the Qantas Agreement and cl 20 of the Jetstar Agreement were each "a term that provides a procedure for dealing with disputes" as referred to in s 738(b) of the Fair Work Act. 94 The agreement expressed in one or other of those two clauses is, on the proper construction of each of those clauses, an agreement that the Commission could "deal with" the "dispute" which had been the subject of the dispute resolution procedures. There was, expressed differently, no agreement that the Commission could "deal with" a different "dispute" or any "dispute" which it could be said "related to" that which had been the subject of the dispute resolution procedure. 95 This approach to the extent of the power conferred upon the Commission is the same as that which has been adopted by the Commission itself: e.g., DP World (Fremantle) Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FWCFB 3965 at [24]. But the Commission has also stressed that for the purposes of a dispute resolution procedure "no particular technicality or formality needs to attend the discussions required for each step provided that communications occur at each level in a genuine attempt to raise and resolve the dispute in question": Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2019] FWCFB 7163 at [29]. It is the same rejection of the need for "technicality or formality" which has been likewise pursued in the present application to the facts of the present proceeding before this Court. 96 It has been concluded that there has been compliance with cll 6.1.1 and 6.1.2 of the Qantas Agreement and cll 20.1 and 20.2 of the Jetstar Agreement. 97 It thus remains necessary to determine the ambit of the "dispute" which had been the subject of the two dispute resolution procedures.

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The applications to the Fair Work Commission & the "dispute" to be dealt with 98 The Form 10 Application made on 26 March 2020 to the Commission by the Engineers Association in respect to Qantas identified the "dispute" as follows: 2. About the dispute 2.1 What is the dispute about? … 1. The dispute arises under the Licenced Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 (the Agreement). The Agreement covers and applies to Qantas, Licenced Aircraft Maintenance Engineers (LAMEs), and the Australian Licenced Aircraft Engineers Association (ALAEA). 2. On 26 March 2020, Qantas informed a number of LAMEs that it was standing them down without pay from 29 March 2020 to 22 April 2020 (albeit that such period would be 'continually under review'… 3. This affects approximately 66% of the LAME workforce. …There is current uncertainty in respect of the remaining workforce, with the ALAEA informed of potential future stand downs (e.g. 1 week on/1 week off at Brisbane Airport). 4. Qantas, in standing down these workers, is purporting to exercise a power granted by cl.14.6 of the Agreement. Clause 14.6 permits Qantas to stand down employees where, relevantly: a. there is a 'stoppage of work through any cause that Qantas cannot be held reasonably responsible'; and b. as a result, the employee cannot be 'usefully employed'. 5. The ALAEA contends that: a. notwithstanding the unquestionably extremely significant impact of the COVID-19 pandemic and related restrictions on the amount of business available to Qantas and, accordingly, domestic and international flying it can conduct, there has nevertheless not been a 'stoppage' of work in respect of the aircraft maintenance functions performed by LAMEs; and b. in any event, the stood down LAMEs can be 'usefully employed' during the period of proposed stand-down. 6. Examples of potential 'useful employment" include, inter alia, heavy maintenance, addressing time-deferred defects, corrosion repairs, and routine and non-routine aircraft maintenance. The Application continued on to state in cl 2.4 the "steps" that had already been taken "to resolve the dispute". 99 The Form 10 Application made on 26 March 2020 in respect to Jetstar was expressed in similar terms. 100 Subsequently, the Engineers Association filed with the Commission on 27 April 2020 an Outline of Submissions which stated in part as follows (without alteration): 57. The correct approach, in determining whether a stand-down is justified under s.524(1)(c), involves three questions: a. has there been some actual cessation of work, rather than a reduction or downturn; b. was this the a result of any act or omission by the employer; and c. is, as a direct result, there no work available for employees within the scope of their employment and which would benefit the employer? This Outline thus expressly sought to have the Commission "deal with" a dispute extending beyond whether there was "useful work" which the LAMEs could undertake and extending to a "question" as to whether: there had actually been a cessation of work; and there had been any "act or omission" for which the employer was to assume responsibility. These further two "questions", the airlines contended, went beyond the "dispute" the subject of any dispute resolution procedure. It was, perhaps, this elaboration of that which the Engineers Association wanted the Commission to "deal with" which provoked the Originating Application to be filed in this Court. But that matters not.

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The dispute - confined to the availability of useful work 101 In need of resolution, accordingly, is the outstanding question as to whether the "dispute" which had been the subject of the cl 6 dispute resolution procedure set forth in the Qantas Agreement and cl 20 of the Jetstar Agreement was a more confined "dispute" than the one the Engineers Association set forth in its Form 10 Applications as expanded upon in its April 2020 Outline of Submissions. 102 Section 739 of the Fair Work Act precludes the Commission from dealing with a "dispute" unless there has been compliance with cl 6 of the Qantas Agreement or cl 20 of the Jetstar Agreement. 103 Qantas and Jetstar thus correctly submitted that the "dispute" which could be dealt with by the Commission had to be the same "dispute" - or a more confined aspect of that "dispute" - as that which had been the subject of the dispute resolution procedure in cl 6 of the Qantas Agreement or cl 20 of the Jetstar Agreement. Although the "dispute" to be dealt with by the Commission could be more confined than that the subject of attempted prior resolution, the "dispute" could not extend beyond the ambit of that previously sought to be resolved: cf. Endeavour Energy [2016] FCAFC 92, (2016) 244 FCR 178. 104 But the acceptance of that submission leaves open to determination the correct identification of what constituted the "dispute". 105 It has been concluded that the relevant dispute was one confined to whether LAMEs could be "usefully employed" - the dispute did not extend to what the airlines described as two other discrete "disputes", namely the "Stoppage Issue" or the "Causation Issue". So much, it is respectfully concluded, follows from: the conversations between Mr Toovey and Messrs Teat and Hutchinson - on so much of those conversations as has been accepted - those conversations being directed to the availability of work that could be undertaken, e.g., the "cycl[ing] of some aircraft through the hangar to acquit outstanding work"; and the identification by Mr Purvinas during the meeting on 20 March 2020 of work that could be usefully undertaken. The account by Mr Purvinas of the nature of the work that could be undertaken was confirmed, at least in part, by the evidence of Mr Smith and Ms Zanello. Any doubt as to the ambit of the dispute is only further resolved by reference to the 25 March 2020 letter from Mr Purvinas which emphasised: the availability of "Useful Employment" - the letter underlining the phrase "usefully employed" and going on to specifically address the "meaning of the term 'Useful Employment'" and the "specific" identification of the work that could be undertaken. 106 Although the term "dispute", as with the other expressions used in cl 6 of the Qantas Agreement and cl 20 of the Jetstar Agreement, should be given some flexibility of meaning - and a meaning certainly falling short of the need for precision with which a pleading in a superior court of record would require that term to be identified - the subject matter of the "opposing views" being expressed remained confined to whether LAMEs could usefully be employed. 107 In recognising the potential range of disputes that may be separately characterised, such as the "questions" put forward by the Engineers Association in the trinity fashion in its Outline of Submissions of 27 April 2020, it must nevertheless be further recognised that the ambit of each "question" may not be susceptible of precise and certain definition. In reality, although each "question" may be its own entity, in resolving the "questions" there may well be overlap. While "dealing with" the dispute that has been characterised as to whether LAMEs can be "usefully employed", it may be inevitable that the Commission may have to also consider whether any cessation of work that did occur was caused by the conduct of Qantas or Jetstar. Although the "dispute" that may be "dealt with" by the Commission will remain the dispute as to whether LAMEs can be "usefully employed", the Commission may thus have to look to matters beyond that discrete issue to determine where the outer boundaries of that dispute truly lie. A factual issue may well arise, for example, if the airlines "caused" there to be no useful work to be performed by reason of their unilateral decision not to bring forward outstanding - but future scheduled - maintenance work. 108 It will remain a matter for the Commission - at least initially - to employ its expertise to determine the boundary as part of its proceeding. It is to be expected that the parties will assist the Commission in that task and that the proceeding will not be characterised by unhelpful argument from the parties directed to abstract jurisdictional issues which cannot be resolved in the absence of a detailed analysis of the facts. The parties should provide assistance by placing all relevant material before the Commission so that submissions may thereafter take place in a factual context confined to the boundaries of the true present dispute. It is, however, a matter for the Commission as to how it will proceed.

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ESTOPPEL 109 As a last bastion of supporting a submission that the Commission has jurisdiction to entertain both Applications made to it on 26 March 2020, the Engineers Association contends that Qantas and Jetstar are estopped from asserting the Commission lacks jurisdiction based on purported non-compliance with the Agreements. Given the conclusions reached in respect to both Qantas and Jetstar, that remaining submission need not be resolved. But some tentative views should nevertheless be expressed as to the fate of the argument. 110 The starting point for this last submission was the reliance placed by the Engineers Association on the following observations of Gageler J in Australian Financial Services & Leasing Pty Ltd v Hills Industries Limited [2014] HCA 14, (2014) 253 CLR 560 at 622-623: [149] The doctrine of estoppel in pais is concerned with estoppel by conduct. The principle on which it is founded is that explained by Dixon J in Thompson v Palmer [(1933) 49 CLR 507 at 547-549] (where the doctrine was relied on as a defence to a claim in equity) and in Grundt [(1937) 59 CLR 641 at 674-677] (where the doctrine was relied on as a defence to an action at law). The principle is that the law does not permit an unjust departure by a party from an assumption which that party has had some part in occasioning another party to adopt or accept for the purpose of their legal relations. What makes such a departure "unjust" - what might in the present context be said to be the relevant "unjust factor" - is that, if departure were permitted, the other party would be left in a position of material detriment through having made the assumption the other party caused to be adopted. That is to say [(1937) 59 CLR at 674]: "[T]he basal purpose of the doctrine … is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it." [150] The foundation of an estoppel lying in a change of position to the prejudice of the party asserting the estoppel, the burden of proof lies with that party. The "real detriment or harm" which that party must prove to ground an estoppel can be any "material disadvantage" which would arise from permitting departure from the assumption on the faith of which that party acted or refrained from acting. Material disadvantage must be substantial, but need not be quantifiable in the same way as an award of damages. Material disadvantage can lie in the loss of a legal remedy, or of a "fair chance" of obtaining a commercial or other benefit which "might have [been] obtained by ordinary diligence". (some citations omitted). 111 Making the very bold assumption that jurisdiction could be conferred upon the Commission by an estoppel, the submission advanced by the Engineers Association fails on the facts. This necessarily follows from the fact that: there was no "assumption" that the Commission had jurisdiction. The reliance placed by the Engineers Association upon the meeting of 18 March 2020 as the springboard for such an argument is, with respect, misplaced. Although it may well have been expected - or assumed - that an industrial dispute may follow as a result of the "key topics" then announced, nothing then canvassed at that meeting could found an assumption that the Commission would have jurisdiction to "deal with" any resultant dispute. Nor could it be submitted that the meeting occurring on 20 March 2020: gave rise to any "assumption" that compliance with the terms of cl 6 of the Qantas Agreement or cl 20 of the Jetstar Agreement would not be required. The simple fact is that there was no discussion at that meeting as to the need for compliance with either provision such as to found any "assumption" as to the Commission having jurisdiction. Nothing that followed at either a meeting on 24 March 2020 or 27 March 2020 leads to any different conclusion. 112 And when the Form 10 Applications were filed with the Commission, the airlines each raised objections as to the jurisdiction of the Commission to "deal with" the Applications. At no time could the Engineers Association or its members reasonably have formed the view that the airlines were doing anything other than contesting the jurisdiction of the Commission. 113 It is thus concluded that there is no estoppel which could arguably confer jurisdiction on the Commission in respect to the Form 10 Applications.

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CONCLUSIONS 114 Not all divisions of opinion between an employer and its employees need necessarily constitute an industrial dispute. And not all divisions of opinion need necessarily fall within a dispute resolution clause in an enterprise agreement. But a division of opinion may constitute a dispute even though it may not also attract any degree of formality of expression. 115 On the facts of the present case, in March 2020, the airline industry - as with many other commercial activities - was facing industrial disruption caused by the COVID-19 pandemic. Airlines were shutting down due to the unheralded downturn in both international and domestic air travel. 116 Qantas and Jetstar were no exception. The stand down of many of its employees was looming. Just as management was discussing what steps needed to be taken, employees were also pondering their fate. One category of airline employees were the LAMEs. They first learnt of the prospect of stand downs on 17 or (more likely) 18 March 2020. LAMEs were discussing amongst themselves what awaited them. Management was forming the opinion that there was no useful work for them to do. Their Union, the Engineers Association, was of the opinion that there remained useful work that could be performed. 117 Discussions occurred not only amongst the LAMEs themselves but also between LAMEs and their supervisors. There may have been little formality in those discussions; they may have been little more than a social communication of concerns. They may not have been formalised in a written expression of concern. But such discussions were sufficient to constitute a "dispute" for the purposes of cll 6.1.1 and 6.1.2 of the Qantas Agreement and cll 20.1 and 20.2 of the Jetstar Agreement. And, as a matter of fact, and not surprisingly, the expression of the division of opinion as to whether there was or was not useful work to be performed was not confined to the LAMEs and their supervisors. It extended to the more senior levels of management. There may not have been an individual LAME who formally reduced his personal concerns to writing and who may have formally asked his supervisor to refer his concerns to more senior levels of management. But that was what was occurring in substance. There was no prospect of the division of opinion as to whether there was or was not useful work to be performed by LAMEs ever being able to be resolved on the hangar floor. Decisions affecting all LAMEs were being taken at a far more senior level of management. 118 The fact of those discussions and decisions having taken place was sufficient to conclude that "the matter [could not] be resolved" or "remain[ed] unresolved" such that the dispute could be "referred" to the Commission pursuant to cl 6.1.3 of the Qantas Agreement and "notified" to the Commission pursuant to cl 20.3 of the Jetstar Agreement. By no later than 20 March 2020 there was no doubt that there was a dispute in need of resolution. Nor was there any doubt that by that date that there was a dispute between the airlines (on the one hand) and the Engineers Association (on the other) as to whether LAMEs could be usefully employed. By 20 March 2020 there was an impasse which had been raised with the most senior levels of management of both airlines. That dispute was ripe to be sent to the Commission to be "dealt with". 119 As a matter of industrial reality, events were unfolding quickly and decisions were being made quickly as to what steps had to be taken by Qantas and Jetstar to address a rapidly changing industrial environment. Although individual LAMEs were unquestionably given individual notices of their being stood down, the decisions as to when, where and how many LAMEs had to be stood down were all decisions being made by those far removed from the hangar floor. 120 Although unnecessary to decide, there was no estoppel which could confer jurisdiction upon the Commission. 121 The division of opinion which constitutes the "dispute" did not extend beyond a dispute as to whether there was useful work which could be undertaken by the LAMEs, notwithstanding the widespread disruption to the airline industry. The Commission has no power to "deal with" any "dispute" extending beyond the question as to whether there was useful work to be undertaken - but where the outer boundaries of that "dispute" may lie remains a matter (at least initially) for the Commission to decide.