Re Flight Crew Officers Industrial Tribunal; Ex p Australian Federation of Air Pilots [1971] HCA 58

In the event that the services of a pilot with more than five years service are terminated by the Company because of redundancy it shall be open to the Federation to raise the question of severance pay for such pilot. It shall be the duty of the Company to give to all pilots at least six months notice of possible termination on account of redundancy.

On 21st September 1971 the Federation, which is a body declared by the Minister for Labour and National Service pursuant to s. 88Z of the Conciliation and Arbitration Act 1904-1970 Cth ("the Act"), gave notice to the Tribunal of a dispute. The Notification of Dispute was headed "Re Retrenchment of Pilots". On 18th and 19th October 1971 at the hearing before the Tribunal pursuant to the notification of dispute the Tribunal heard argument on the question of jurisdiction. In the course of that argument the Tribunal requested that the nature of the relief sought by the Federation be formulated. In response to that request the following orders were suggested:

That the said Qantas Airways Limited withdraw notices of termination of services served on the said pilots and cadet pilots and that the said pilots and cadet pilots be continued in employment by the said Qantas Airways Limited.

That in settlement of the industrial question so notified in respect of the pilots and cadet pilots currently employed by Qantas Airways Limited, Sub-section K of Section 5 of the Award of the Tribunal known as the Airline Pilots' (Qantas) Award 1970 be set aside and in its place the following be awarded:

In the event that the services of a pilot with more than five years service are terminated by the Company because of redundancy it shall be open to the Federation to raise the question of severance pay for such pilots. It shall be the duty of the Company to give to all pilots employed as at the twenty-second day of April, One Thousand Nine Hundred and Seventy-one at least twenty-four months notice of possible termination on account of redundancy.

That pilots employed by the said Qantas Airways Limited and who were given notice of termination because of redundancy on or after the Twenty-second day of April, One Thousand Nine Hundred and Seventy-one be deemed to have been given not less than twenty-four months notice of such possible redundancy from that date.

The Tribunal however came to the following conclusion with respect to its jurisdiction:

It follows that no presently existing industrial matter exists which can invoke the jurisdiction of this Tribunal. I should also add that I would not find any industrial dispute to be in existence for the reasons I have already outlined. It was contended for the Federation before this Court that mandamus should go to the Tribunal requiring it to exercise the jurisdiction conferred on it by the Act to consider and determine the industrial question set out in the notification of dispute. It was submitted that the source of the Tribunal's jurisdiction was s. 88U of the Act, which states, so far as it is material:

(b) to consider and determine industrial questions in so far as the industrial matters concerned relate to one or more of the following:

(ii) employment of flight crew officers by Qantas Airways Limited;

Section 88H of the Act contains the following definitions: "industrial question" means a dispute or question as to industrial matters, including an inter-State industrial dispute.

"industrial matters" means all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, flight crew officers employed or to be employed by employers.

The Tribunal found that there was not a dispute as to a matter pertaining to terms or conditions of service or employment of the pilots in question and so as to an "industrial matter" within the meaning of s. 88H, but rather a dispute as to an exercise by Qantas of its right of giving notice according to a condition set out in the Award and not in issue as to its meaning. In my opinion this finding was correct.

It was further argued before this Court that an industrial question was raised by the Federations' proposal that the Award be varied by the substitution for s. 5K of the suggested section proffered during argument before the Tribunal. In my opinion the Federation's request that the Award should be thus varied did raise an industrial question as to a matter pertaining to terms or conditions of service or employment of the pilots to whom notice had been given.

It must be decided therefore whether the Tribunal did in fact consider and determine this question. The Tribunal made the following finding on this point:

It could only involve an industrial matter if, having found that Qantas could not be justified in taking the action to terminate, I were to qualify the present terms and conditions of employment so as to make some provision for the effects of the company's decision. But where is my authority to inquire into the company's decision? I am really being asked to assume that authority quite gratuitously without any foundation for so doing and then to manufacture, as it were, an industrial matter from the result of my inquiry. This is insupportable.

In my judgment the Tribunal did consider and determine this question. It acknowledged its power to vary the Award in the way requested but refused to do so on the valid ground that such a variation could only be made after an examination of Qantas' reasons for giving notice, an examination which it regarded as unjustifiable. This amounts in my opinion to a proper consideration by the Tribunal of the matter before it and a determination of the matter pursuant to such consideration.

In my opinion therefore the rule nisi should be discharged.

This is an application to make absolute an order nisi for mandamus sought, presumably, under the Constitution, s. 75 (v.), to command the Deputy President of the Commonwealth Conciliation and Arbitration Commission, constituting the Flight Crew Officers Industrial Tribunal, to consider and determine an industrial question between the Australian Federation of Pilots and Qantas Airways Ltd., submitted to the Tribunal by the prosecutor pursuant to a notification of dispute dated 21st September 1971 and numbered T. 17 of 1971. The ground alleged is that the Tribunal has refused to exercise the jurisdiction conferred upon it by Pt IIIA of the Conciliation and Arbitration Act 1904-1970 Cth to consider and determine such a question. The prosecutor, which is a declared body under s. 88Z of the Act, is a party to the current Award made earlier by the Tribunal, viz. Airline Pilots' (Qantas) Award 1970.

The Tribunal did, I think, decide - subject to one reservation to be referred to later - that it had no jurisdiction in the matter because the notification of dispute referred to did not raise an industrial question for determination.

Part IIIA of the Act empowers the Tribunal "to consider and determine industrial questions" (s. 88U). An "industrial question" is "a dispute or question as to industrial matters " (s. 88H). " "Industrial matters" means all matters pertaining to the remuneration or other terms or conditions of service or employment of, or affecting or relating to work done or to be done by, flight crew officers employed or to be employed by employers" (s. 88H). It is to be observed that this definition of industrial matters is considerably narrower than the better known definition of such matters in s. 4. Among other things, it would not seem to cover either a refusal to employ or reinstatement in employment once employment has ceased.

It is with the foregoing provisions in mind that I examine the notification of dispute to ascertain whether it did raise an industrial question for determination. For the present, I exclude from consideration par. 6 of the notification and reserve it for later consideration, because it seems to me that the Tribunal did, rightly or wrongly, deal with the subject matter of this paragraph.

The notification asserts the existence of an industrial dispute with respect to matters set out in twelve paragraphs. The facts asserted are that Qantas had given notice of retrenchment on the ground of redundancy to 138 pilots. For the rest, apart from alleging matters of hardship, the paragraphs are argumentative; they record that the Federation does not believe that there was a state of redundancy and does believe that the notices should not have been given and should be withdrawn. There is attributed to Qantas the failure to avert an actual redundancy, and it is argued that it should have taken steps to increase its operations and consequently its requirements of pilots. In the notification there is nothing at all about varying the existing Award.

The Tribunal, not unnaturally, had some difficulty in ascertaining from the document what was said to be the industrial question that it was requested to determine, and, in an attempt to obtain elucidation of this, it invited those representing the Federation to submit a form of order sought for the determination of the industrial question which it was claimed had arisen. Pursuant to this request, two forms of order were put forward. They were as follows:

Whereas on the 21st day of September, 1971, notification was given by the Australian Federation of Air Pilots of an industrial question relating to the retrenchment of pilots and cadet pilots employed by Qantas Airways Limited

and whereas this industrial question came on for hearing from time to time thereafter and upon this day upon reading the said notification and upon hearing the submissions thereon made by representatives of the parties thereto this tribunal does award, order and prescribe as follows:

That the said Qantas Airways Limited withdraw notices of termination of services served on the said pilots and cadet pilots and

That the said pilots and cadet pilots be continued in employment by the said Qantas Airways Limited.

Dated this_______day of October in the year One Thousand Nine Hundred and Seventy one.

Signed...............................................................................................

Whereas on the 21st day of September, 1971, notification was given by the Australian Federation of Air Pilots of an industrial question relating to the retrenchment of pilots and cadet pilots employed by Qantas Airways Limited

and whereas this industrial question came on for hearing from time to time thereafter and upon this day upon reading the said notification and upon hearing the submissions thereon made by representatives of the parties thereto this tribunal does award, order and prescribe as follows:

1. That in settlement of the industrial question so notified in respect of the pilots and cadet pilots currently employed by Qantas Airways Limited, Sub-section K of Section 5 of the Award of the Tribunal known as the Airline Pilots' (Qantas) Award 1970 be set aside and in its place the following be awarded: In the event that the services of a pilot with more than five years service are terminated by the Company because of redundancy it shall be open to the Federation to raise the question of severance pay for such pilots. It shall be the duty of the Company to give to all pilots employed as at the twenty-second day of April, One Thousand Nine Hundred and Seventy-one at least twenty-four months notice of possible termination on account of redundancy.

2. That pilots employed by the said Qantas Airways Limited and who were given notice of termination because of redundancy on or after the Twenty-second day of April, One Thousand Nine Hundred and Seventy-one be deemed to have been given not less than twenty-four months notice of such possible redundancy from that date.

Dated this___________day of October in the year One Thousand Nine Hundred and Seventy-One.

Signed...............................................................................................

It is to be observed that each of the proposed determinations recited that there had been a notification of an industrial question and that this had come on for hearing.

My examination of the notification of dispute, excluding par. 6, satisfies me that it does not raise any question pertaining to the terms and conditions of service or employment of the pilots, unless such a question appears from par. 9 which is in these terms:

The Federation believes that the pilots should not have been given notice of retrenchment and that such notices should be withdrawn. It would seem that the first of the foregoing proposals for a determination was probably drawn with this paragraph in mind.

The primary matter for determination, as I see it, is whether the assertion of a belief or the making of a claim in terms of par. 9 is the formulation of an industrial question, i.e. a question pertaining to "terms or conditions of service or employment" of pilots employed by Qantas.

At this point it is necessary to set out two provisions of the existing Airline Pilots' (Qantas) Award. They are s. 5, A (in part) and K:

a. The services of a pilot shall be terminable by either the Company or the pilot:

(i) during the first twelve months of service or during any extended period of probation by fourteen days notice in writing; or

(ii) thereafter by twenty-eight days notice in writing; or

k. In the event that the services of a pilot with more than five years service are terminated by the Company because of redundancy it shall be open to the Federation to raise the question of severance pay for such pilot. It shall be the duty of the Company to give to all pilots at least six months notice of possible termination on account of redundancy.

It appears that, in purported compliance with the foregoing provisions, Qantas had, on 22nd April 1971, given the pilots concerned six months' notice of termination due to redundancy.

Here too I should also set out par. 6 of the notification of dispute referred to previously:

Sub-section K of Section 5 of the Airline Pilots' (Qantas) Award 1970 prescribed that it shall be the duty of the Company to give to all pilots at least six months notice of possible termination on account of redundancy. Such provision by wording and intent required the Company to give notice of possible redundancy, whereas the Company at the time of issuing notices declared an absolute state of redundancy. It is in the Federation's view unacceptable that, in respect of Qantas Airways Limited, a genuine state of redundancy would exist one month after pilots had been assured that no such state existed and that their careers were assured.

It seems that the Tribunal did actually consider and determine the question raised by this paragraph. The decision was that the submission, that notices given were invalid, failed. Whether or not this decision was correct has no bearing upon the present complaint that jurisdiction was wrongly refused. In relation to this matter there was, rightly or wrongly, an exercise of jurisdiction. In any event the judicial interpretation of an award is not a matter for the Tribunal.

I now turn back to what I have described as the primary matter for decision, namely, whether par. 9 of the notification gives rise to an industrial question.

There is no doubt that a question about the notice to be given to dismiss employees, and the procedures to be followed in dismissing employees, would be an industrial question within the definition of s. 88H, for those matters do pertain to the terms and conditions of employment. Thus pars. A and K of s. 5 were properly included in the existing award. Furthermore, of course, the question whether these existing terms should be altered, for any reason, would be an industrial question. It is, however, another matter if the question which has arisen is whether or not, in doing what has been done in dismissing employees, Qantas has fulfilled its obligations relating to the dismissal of employees. Such a question would not pertain to terms and conditions of employment. It seems to me that any question raised by par. 9 of the notification is of this character. It relates entirely to policy and in no way to the terms and conditions of employment of pilots.

Accordingly, in deciding that the notification - apart from par. 6 - did not raise an industrial question, and in deciding not to hear the matter further, the Tribunal did not refuse to exercise a jurisdiction which it had; rather, it correctly decided that the giving of the notification, relied upon to raise an industrial question, did not do so.

There is, however, a complication that requires consideration. It arises from the putting forward by the prosecutor of the second proposal for an order already set out. Part of what is there proposed is that the existing award should be varied and, before us, it was contended that the Tribunal wrongly decided that it had no jurisdiction to make such an order. If, of course, the Tribunal had, upon a request for a variation, so decided that it had no power to do so, there would have been a refusal to exercise a conferred jurisdiction, for the question whether an award should be varied in regard to a term or condition of employment is an industrial question, whatever be the ground upon which the application to vary may be made. For instance, an application to vary, based upon the suggestion that existing terms had been unnecessarily applied, would give rise to an industrial question.

It is necessary, therefore, to determine whether the Tribunal did refuse to determine a question about the variation of par. K of s. 5 of the Award. I do not think it did. In the first place, the draft determination was submitted, not to raise an industrial question, but to help elucidate whether any industrial question had been raised by the earlier notification. As I have already said, there is nothing in the notification relating to the variation of the existing Award. Furthermore, the Tribunal did not deny that it had jurisdiction to deal with an application to vary the existing Award. What the Tribunal did decide in this regard was that no question about the variation of the Award could arise unless it had been found that there was insufficient justification for Qantas having taken action to terminate the employment of the pilots to whom notice was given. What was said is as follows:

As I have already pointed out, the question which I have been asked to decide is the justifiability of the decision of Qantas to terminate on account of redundancy. This essential issue requires me to hear evidence of the nature described in the opening address presented on behalf of the Federation. The outline of that evidence is contained in the notification. The issue involved, and this is what the dispute is about or what the question involves, is whether there has been a managerial mistake on the part of Qantas. It is really whether a management decision pertaining to the retrenchment of the second officers and cadets is wrong and ought to be corrected. But there is no defined industrial matter involved in that issue at all. It could only involve an industrial matter if, having found that Qantas could not be justified in taking the action to terminate, I were to qualify the present terms and conditions of employment so as to make some provision for the effects of the company's decision. But where is my authority to inquire into the company's decision? I am really being asked to assume that authority quite gratuitously without any foundation for so doing and then to manufacture, as it were, an industrial matter from the result of my inquiry. This is insupportable. This cannot be read as a refusal to exercise a jurisdiction to vary an existing award.

To obtain mandamus the prosecutor must show that the Tribunal was requested to exercise a particular jurisdiction, which it had, and that this request was refused. This has not been shown. Furthermore, any order for mandamus would have to be precise about the jurisdiction to be exercised by the Tribunal. What is sought by the order nisi is that the Tribunal should "consider and determine an industrial question between the Australian Federation of Air Pilots and Qantas Airways Ltd. submitted to it by the prosecutor pursuant to notification of dispute dated 21st September 1971 and numbered T.17 of 1971". In an endeavour to make more precise the order now sought, counsel for the prosecutor asked this Court to make an order as requested but with an addition as follows: " as an application for the variation of the Airline Pilots' (Qantas) Award." An order in such terms, however, could obviously only be made if there were to be found in the notification of dispute an application for the variation of the Award and, as I have pointed out, there is no such application.

It is for the foregoing reasons that I consider that the order nisi should be discharged.

It was contended on behalf of Qantas that, if there were otherwise grounds for granting the mandamus sought, it should be refused because now none of the pilots affected by the notice of retrenchment referred to in the notification of dispute remain in the employ of the company and that, consequently, any industrial question that there may have been has already disappeared. Having regard to what I have already decided, it is unnecessary for me to deal with this contention, and I refrain from so doing.

I agree that this application should be refused and the rule nisi discharged. I consider that there was no industrial question, in the statutory sense, which gave the Flight Crew Officers Industrial Tribunal a jurisdiction which it refused to exercise. The grievance of the prosecutor, as expressed in its original notification of what it called an industrial dispute, was that its members who had been given notice of the termination of their employment would suffer hardship. That, although it may attract sympathy, does not confer jurisdiction. The Award provides for the termination of the services of pilots because of redundancy. The expression is clumsy: but the meaning is plain. The contention that the respondent, Qantas, had a duty "to avert a redundancy situation" and that it should have "taken steps to increase its operations and thereby its pilot establishment" is simply a complaint of the way in which it had managed its affairs. The Tribunal has no obligation, indeed I consider no authority, to investigate the way in which an employer conducts his business if he does so within the framework of the existing law. A mandamus can issue out of this Court against the Tribunal, or more accurately against the officer of the Commonwealth who constitutes it: The Constitution, s. 75. A mandamus commands the person to whom it is addressed to do an act or to shew cause why he has not done it: High Court Rules, O. 55, r. 19. I do not think that any such order could issue on the existing material, for it is not apparent to me what it is said that the Tribunal has failed to do that it ought to have done. Having regard to the way the proceedings before the Commissioner who constituted the Tribunal developed, what he was asked was really to vary the existing award, by repealing one provision of it and substituting a provision in a different form which would have a retrospective operation. As I read his judgment he declined to do this, not because he held that he had no jurisdiction to vary the Award, but because he considered that no occasion for doing so had arisen. I need not elaborate further my agreement in the judgment of the Chief Justice.

I have had the advantage of reading the judgment prepared by the Chief Justice. I agree with it and with the order proposed by him.