FEDERAL COURT OF AUSTRALIA

Australian and International Pilots Association v Qantas Airways Limited (No 2) [2014] FCA 109

THE COURT ORDERS THAT:

1.    The application be dismissed.

2.    There be no order as to costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1     The first applicant (“AIPA”) is, and was at all material times, an organisation of employees registered in accordance with the Fair Work (Registered Organisations) Act 2009 (Cth). The second to twelfth applicants (“the applicant pilots”) were, at all material times, airline pilots employed by the respondent (“Qantas”). Each of the pilots are members of AIPA and AIPA is entitled to represent their industrial interests.

2    Qantas is covered by and bound to observe three industrial instruments of relevance to this proceeding. The first is the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2005-2006 (“the Long Haul Agreement”). The second is the Qantas Airways Limited Flight Crew (Short Haul) Workplace Agreement 2007 (“the Short Haul Agreement”). The third industrial instrument is of some background relevance and is known as the Qantas/Australian Airlines Pilots Integration Award 1994 (“the Integration Award”).

3    Qantas operates an airline business in which it utilises various types of aircraft including the Boeing 737 (“B737”). Qantas has four base stations to which the pilots it employs are allocated for the purpose of commencing and finishing their duty. Those base stations are located in Melbourne, Brisbane, Sydney and Perth. The flight crew on a B737 aircraft is comprised of a Captain and a First Officer.

4    Between 29 August 2011 and 7 October 2011, six B737 First Officers allocated to positions at Qantas’ Brisbane base station accepted positions with another airline and were no longer available to Qantas. In response to the loss of those pilots, Qantas determined that three vacancies for B737 First Officer positions had arisen at the Brisbane base station (“the Brisbane vacancies”). It is not in contest that at the time those vacancies arose, the number of B737 First Officers across all of Qantas’ bases was sufficient to meet the operational needs of Qantas for B737 First Officers. In selecting the B737 First Officers to fill the Brisbane vacancies, Qantas only considered for selection applications from pilots who already held positions as B737 First Officers. The Brisbane vacancies were filled by Qantas appointing three B737 First Officers then based in Perth. In essence, Qantas filled the Brisbane vacancies by reducing its compliment of B737 First Officers at its Perth base by three and transferring those three pilots to its Brisbane base.

5    By reason of that conduct, the applicants claim that Qantas breached both the Long Haul and Short Haul Agreements. Both the Long Haul and Short Haul Agreements contain provisions which deal with the selection of pilots for vacant positions and provide for the seniority of pilots eligible for selection to be a central criterion for selection. The applicants allege that in or about October 2011, Qantas failed to select the applicants and in particular the second, fourth and sixth applicants, as the most senior applicants for the Brisbane vacancies. The failure to select the second, fourth and sixth applicants is alleged to constitute a breach of cll 13.4.1 and 13.4.4 of the Long Haul Agreement. The selection of the three pilots who were placed into the Brisbane vacancies instead of the more senior applicant pilots is alleged to constitute a breach of cll 15.3.1, 15.3.2 and 15.3.3 of the Short Haul Agreement. In relation to each of those breaches the applicants seek declarations and the imposition of pecuniary penalties.

6    Each of the Long Haul and the Short Haul Agreements are transitional instruments within the meaning of sub-item 2(3)(a) of Schedule 3 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (“the TPCA Act”) and continue in force by reason of sub-item 2(1) of Schedule 3 of that Act. By reason of sub-item 2(2) of Schedule 16 of the TPCA Act, a person to whom a transitional instrument applies must not contravene its terms. By reason of item 16 of Schedule 16 of the TPCA Act, the compliance and enforcement provisions found in Part 4-1 of the Fair Work Act 2009 (Cth) apply in relation to a breach of a transitional instrument and the Court is empowered to impose a pecuniary penalty in relation to such a breach.

7    The standing of the applicants to sue and the Court’s capacity to grant the relief sought is not in issue. The contest raised by this proceeding is essentially about whether or not Qantas was obliged to have included the applicant pilots in the selection process for the Brisbane vacancies. There is no issue that had the applicant pilots been entitled to apply for and had they been eligible to be considered for selection for those vacancies, on the basis of seniority, the second, fourth and sixth applicants, as the most senior of the applicant pilots, would have been entitled to be selected in preference to the three pilots who were.

Background

8    The selection of pilots for flight crew positions with Qantas is highly regulated by each of the Long Haul and Short Haul Agreements. It is necessary to refer to some background history which explains the existence of separate industrial agreements for each of Qantas’ long haul and short haul operations.

9    Qantas operates an airline business with both international and domestic operations. In those operations different types of aircraft are utilised. There is a dichotomy in the industrial coverage of flight crew who are members or eligible to be members of AIPA, as between the Long Haul Agreement and the Short Haul Agreement. That dichotomy is based on the aircraft type operated by the pilot. Relevantly, the B737 aircraft is categorised as a short haul aircraft and each of the B744, B747, A330 and B767 aircraft are categorised as long haul aircraft. Pilots who operate B737 aircraft are covered by the Short Haul Agreement (“short haul pilots”). All other pilots (“long haul pilots”) are covered by the Long Haul Agreement.

10    The dichotomy of industrial coverage has its historical genesis in the takeover by Qantas in 1993 of the former domestic airline operations of Australian Airlines. That acquisition led to the making on 18 April 1993 of a letter of agreement between Qantas and AIPA (“the 1993 LOA”) and also to the making of the Integration Award, which came into force in September 1993.

11    Whilst there was limited evidence before the Court on the issue, it was not in contest that prior to the merger of Qantas’ and Australian Airlines’ operations, each airline had selection processes in place for the promotion and transfer of pilots into vacant positions. In each case, the selection process was substantially based on seniority and each of the airlines maintained a seniority list.

12    The terms of the Integration Award show that it was made on the basis that Qantas had or would employ the pilots formerly employed by Australian Airlines. In relation to the applicability of seniority for purposes other than redundancy, cl 8 of the Integration Award provided for an integrated seniority list for all Qantas pilots including those formerly employed by Australian Airlines. The primary effect of the integrated list was to give the former Australian Airlines pilots seniority over existing Qantas pilots in relation to “matters applicable” to short haul aircraft and existing Qantas pilots seniority over the former Australian Airlines pilots in relation to “matters applicable” to long haul aircraft.

13    The 1993 LOA set out agreed terms by which Qantas pilots “may be seconded to Australian Airlines to operate as pilots on Australian Airlines’ aircraft”. The 1993 LOA was revised in 1996 and became a letter of agreement known as LOA 102 which was annexed to a predecessor certified agreement to the Long Haul Agreement. That document is the direct predecessor of “LOA 102A” which is a document that is central to the contest raised by this proceeding.

The competing contentions

14    The applicants contended that the applicant pilots were entitled to transfer from Qantas’ long haul operations to Qantas’ short haul operations and specifically to the Brisbane vacancies. The asserted right of the applicant pilots to have been considered for and selected for the Brisbane vacancies was said to arise from the terms of LOA 102A. LOA 102A is an annexure to the Long Haul Agreement. The parties accept that LOA 102A forms part of the Long Haul Agreement and they are bound by its terms.

15    The applicants contended that cl 2.1 of LOA 102A requires “all vacancies on B737 aircraft” to be allocated in accordance with the Integration Award and clause 13.4 of the Long Haul Agreement. The applicants contended that cl 2.1 of LOA 102A, when construed with the opening words of LOA 102A, requires that once a long haul pilot (such as each of the applicant pilots) has applied for a transfer to a position in the short haul operations of Qantas to fill a vacancy on a B737 aircraft (as the applicant pilots did), the vacancies to which those applications relate had to be filled in accordance with cl 13.4 of the Long Haul Agreement. Whilst the applicants did not contest that the Brisbane vacancies were vacancies at Qantas’ Brisbane base station, they contended that each of the Brisbane vacancies was a vacancy on a B737 aircraft and therefore a vacancy of the kind contemplated by cl 2.1.

16    Turning then to cl 13.4 of the Long Haul Agreement, the applicants rely specifically on paragraph (a) of cl 13.4.1 and say that pursuant to that paragraph, seniority will determine the order of selection of flight crew members for promotion, transfer to a base station and transfer to an aircraft type. In the case of each of the applicant pilots, their selection for the Brisbane positions would have entailed a promotion from Second Officer to First Officer, a base transfer to Brisbane and a transfer to a different aircraft type (to a B737).

17    The applicants contend that each of the applicant pilots met the requirements of paragraph (a) of cl  13.4.1 because each was “sufficiently qualified to undertake the training or duty required”. On the applicants’ contention the term “sufficiently qualified” as utilised in that paragraph is to be given its defined meaning set out in cl 7 and is to be read with cl 13.4.1(b). As the applicant pilots were qualified to “undertake the training” necessary to be promoted into a B737 First Officer position, the applicants contended that the requirements of paragraph (a) of cl 13.4.1 were satisfied. There is no contest that the applicant pilots were at the relevant time qualified to undertake the training necessary for them to be promoted to First Officers and endorsed to fly a B737 aircraft.

18    Qantas contended that the gateway provided by LOA 102A for long haul pilots to transfer to its short haul operations to operate B737 aircraft was not available in relation to the Brisbane vacancies. Qantas contended that the Brisbane vacancies were “base station vacancies” in relation to which cl 2.1 of LOA 102A was inapplicable. Although cl 2.1 refers to “all vacancies on B737 aircraft”, Qantas contended that LOA 102A is only dealing with what it called “training vacancies”. Those vacancies, according to Qantas’ submission, are vacancies generated when there is a shortfall between the overall number of B737 First Officers or Captains available and the number of B737 First Officers or Captains required by Qantas. They are not vacancies at any particular base station capable of being filled by the existing compliment of B737 pilots, but are vacancies created by a shortage of B737 pilots in the relevant category (Captain or First Officer). Vacancies of that kind require pilots to be trained in order that they may be promoted and/or endorsed to fly the B737 aircraft. Qantas contended that LOA 102A only applied to a vacancy created by a need to train new B737 pilots in order to increase or maintain the overall compliment of B737 pilots employed by Qantas to meet an existing or foreshadowed shortage of B737 pilots. Consequently, Qantas contended that the only pilots who were eligible to be included in the selection process for the Brisbane vacancies were those pilots who were already First Officers and already endorsed to fly B737s.

19    Qantas also denied that the applicant pilots were “sufficiently qualified” to be eligible to be included in the selection process for the Brisbane vacancies within the meaning of that term in paragraph (a) of cl 13.4.1 of the Long Haul Agreement. In that regard Qantas contended that in relation to a vacancy at a base station, only pilots sufficiently qualified to “undertake the …duty” required by the vacant position could satisfy the requirements of paragraph (a) of cl 13.4.1. It is not in contest that at the relevant time the applicant pilots were not qualified to undertake the duty required by the positions for which the Brisbane vacancies were advertised.

The principal provisions

20    Clause 13 of the Long Haul Agreement dealt with seniority as a criteria for the selection of pilots for various vacancies as well as demotion or termination in the event of redundancies. According to cl 13.1, the “seniority” of one pilot relative to another is determined by the length of continuous service of each pilot with Qantas (subject to some minor qualifications of no present relevance).

21    The terms of cl 13.4 of the Long Haul Agreement contemplate various kinds of vacancies. Clause 13.4 is in the following terms:

13.4     Application of seniority

13.4.1     Seniority determines the order of selection for promotion, transfer to base station or aircraft type and demotion or termination if redundancies occur

(a)    Flight crew members who are sufficiently qualified

Without limiting any other provision of this Employment Contract and provided that in each case the flight crew member is sufficiently qualified to undertake the training or duty required, seniority will determine the order of selection of flight crew members for:

(i) promotion;

(ii) transfer to a base station;

(iii) transfer to, and status on, an aircraft type; and

(iv) demotion or termination if redundancies occur.

(b)    Flight crew members who are not considered to be sufficiently qualified

If it considers that a flight crew member who applies for a vacancy is not sufficiently qualified (refer clauses 14.7.4 and 37.1) to undertake the training or duty required, the Company will advise the flight crew member accordingly.

13.4.2    Advertising initial vacancies

The Company will advertise all initial vacancies planned for a training block by 15 April each year. Each advertised vacancy will specify the bid period in which training is expected to commence and, if possible, the planned date on which the training course is to commence.

13.4.3     Closing date for bids

    Bids (either by way of letter of preference or a bid for a specific vacancy in accordance with clause 13.3.6) for the advertised initial vacancies will close at 10.00 a.m. on 8 May each year (or, if 8 May is not a business day, on the first business day after 8 May (“closing date”).

13.4.4    Awarding vacancies in order of seniority

All initial and residual vacancies will be awarded in order of seniority to sufficiently qualified flight crew members from the letters of preference held on file or bids for specific vacancies received by the Company by the closing date.

13.4.5    Assigning vacancies in reverse order of seniority

If there are no letters of preferences on file or bids for specific vacancies, initial and residual vacancies will be assigned to sufficiently qualified flight crew members in reverse order of seniority.

13.4.6     Conditional bids

The Company will endeavour to honour conditional bids, subject to Company requirements. Conditional bids will be considered in seniority order and training commencement dates will be in order of seniority, subject to clause 13.4.12.

13.4.7     Date by which vacancies will be allocated and promulgated

All initial and residual vacancies will be allocated, and the names of successful trainees promulgated, by 8 June each year. The promulgation notice will specify the bid period in which training is expected to commence and, if possible, the planned date on which the training course is to commence.

13.4.8         Date for training courses to commence & notice to flight crew members

The Company will give a flight crew member at least three (3) weeks’ written notice of the date on which his or her training course is to commence unless otherwise agreed between the Company and the Association.

13.4.9     Provisional allocation of vacancy subject to flight crew member being cleared for training

A flight crew member who is not considered to be operationally suitable for training (refer clauses 14.7.4, 14.7.5, 37.1 and 38) but who has had a time fixed for a review, may be provisionally allocated a vacancy, with a training course date scheduled to take place after the review date. If the flight crew member is cleared for training, the vacancy will be confirmed. If the flight crew member is not cleared for training, the vacancy will be re-allocated from letters of preference held on file at the time the decision that a flight crew member is not cleared for training, is made.

13.4.10 Bidding for, and award of, a vacancy in a lower category

(a)    Flight crew member’s right to bid

A flight crew member may bid for a vacancy in a lower category.

(b)     Award of a vacancy is at the Company’s discretion

An award of a vacancy in a lower category is at the Company’s discretion.

(c)     Once only right to bid for, and be awarded, a vacancy in a lower category

(i)    A flight crew member can only exercise the right to bid for, and be awarded, a vacancy in a lower category on one occasion. Provided the flight crew member meets the criteria agreed between the Company and the Association, the vacancy will be awarded.

(ii)    An award of such a vacancy in a lower category but within the same status, will only be made if the flight crew member has had five years of completed service in his or her current category and undertakes to give a two year return of service in the new category.

(iii)    The HOFO has discretion as to the timing of the transfer, taking into account the Company's ability to release the flight crew member from his or her current category.

13.4.11    Assigning emergency temporary vacancies at a base station

In an emergency, temporary vacancies at a base station and/or on an aircraft type may be assigned in accordance with clause 15.10 to the most junior qualified flight crew member.

13.4.12     Training out of seniority order

Flight crew members will be trained in seniority order unless operational requirements or training constraints (e.g. the need for “pairing”) necessitate a variance to that order, in which case the Company will advise the Association of the reasons before promulgating the allocated vacancies.

13.4.13     Additional vacancies created by a training failure

If an additional vacancy is created during a training block due to a flight crew member's failure of a training program, the Company will fill the training vacancy from letters of preference held on file at the time the additional vacancy is created.

13.4.14 Increased training requirements

(a)     If additional initial vacancies arise due to an increased requirement for flight crew members in any category after vacancies for a training block have been allocated and promulgated, the additional vacancies will be awarded in order of seniority (or assigned in reverse seniority order) to sufficiently qualified flight crew members from the letters of preference held on file at the time the vacancies arise.

(b)     If the number of additional vacancies exceeds seven (7) in any category, they will be advertised (with a 4 week period in which flight crew members can submit a bid for a specific vacancy) unless otherwise agreed with the Association provided there is sufficient time to advertise and allocate the vacancies.

(c)     A flight crew member who has already been allocated a training vacancy that was not his or her first preference and who has not commenced training, can elect to be allocated to a vacancy that is his or her higher preference.

13.4.15      Release from a vacancy & re-allocating the vacancy

(a)    The HOFO (or designate) may release a flight crew member from an allocated vacancy.

(b)         Unless released on compassionate grounds, a flight crew member may be denied an allocation of another vacancy for a period of not more than 12 months from the promulgated date of the vacancy from which he or she is released.

(c)    The vacancy will be re-allocated from letters of preference held on file at the time of the re-allocation. The re-allocation of the vacancy in this circumstance will not require the remaining vacancies in the same category, for which flight crew members have not commenced training, to be re-ordered.

13.4.16 Re-scheduled or deferred training course dates

(a)    Training course dates may be re-scheduled within a training block.

(b)     A training course that is deferred beyond the end of the relevant training block will be deemed to be cancelled unless the Company and the Association agree to continue to defer it into the next training block.

13.4.17 Cancelled training course dates

(a)    If the number of flight crew members remaining to be trained in a training block need to be reduced, any flight crew member assigned to a vacancy will first be released from the vacancy and then the principle of reverse order of seniority will apply.

(b)    Where a flight crew member's training course is cancelled, any remaining flight crew members who have not commenced training will be subject to an adjustment of the remaining training course dates in that category.

(c)    If a flight crew member's training course date is cancelled and a less senior flight crew member has been trained or has commenced training for a vacancy in the same category, the untrained flight crew member will be allocated the first training course in the same category in the next group of allocations.

13.4.18 Re-bidding for vacancies where 7 or more training courses are cancelled

If seven (7) or more initial vacancies in a category are cancelled within a training block, a re-bid will take place for all vacancies where training has not commenced. Details of the cancelled training and re-bid will be advised to flight crew members after consultation with the Association, allowing flight crew members sufficient time to update their letters of preference or submit a bid for a specific vacancy.

13.4.19 By-pass associated with cancelled vacancy

If a flight crew member, whose allocated vacancy has been cancelled, is not allocated another vacancy and commenced training in the same category within twelve (12) months of the date when his or her seniority had entitled the flight crew member to commence training in accordance with his or her bid, the flight crew member will accrue bypass pay (pursuant to clause 13.5.2(b)).

13.4.20 Awarding a vacancy in a lower status

If a flight crew member is awarded a vacancy in a lower status due to Aviation Regulatory Authority requirements, the flight crew member will retain staff travel entitlements applicable for his or her prior higher status.

22    The word “vacancy” is not defined by the Long Haul Agreement. The terms “initial vacancy”, “residual vacancy” and “additional vacancy” utilised by cl 13.4 are defined in cl 7 of the Long Haul Agreement as follows:

initial vacancy means a promotional and/or type transfer vacancy advertised by the Company for a category that is anticipated to become available during a training block.

residual vacancy means a vacancy resulting from the vacation of a position by a flight crew member who has been allocated an initial or additional vacancy.

additional vacancy means a promotional and/or type transfer vacancy that becomes available within a training block after initial vacancies have already been advertised.

23    The phrases “sufficiently qualified” and “training block” are also defined by cl 7 as follows:

sufficiently qualified means a flight crew member has achieved and maintained the standards and experience required by the Aviation Regulatory Authority plus any special requirements set by the Company.

training block means a period of twelve months commencing on 1 July each year during which all initial promotional and/or type transfer vacancies are planned to be advertised and allocated in one group.

24    It is necessary to set out the relevant terms of LOA 102A. The letter commences with the following paragraph:

This Letter of Agreement supersedes LOA 102 in its entirety and contains the terms and conditions under which flight crew members will be transferred from long haul operations to short haul operations to operate B737 aircraft and the terms and conditions that will govern their employment during the term of their transfer.

25    What follows is a definition section which defines the Integration Award, the Long Haul Agreement and the Short Haul Agreement. Clause 2 then follows. Clause 2 is in the following terms:

2.    Allocation of vacancies

2.1    All vacancies on B737 aircraft will be allocated in accordance with the Integration Award and clause 13.4 of the Long Haul Certified Agreement (and, to the extent of any inconsistency between those two documents, the Integration Award will prevail).

2.2    For the purposes of this Letter of Agreement, clause 14.5 of the Long Haul Certified Agreement is varied to include a reference to the B737 aircraft, viz:

    “Category of a pilot according to aircraft type

The category of a pilot is the pilot’s status on an aircraft type and is ranked in the following descending order:

    B744 Captain

    A330 Captain

    B747 Captain

B767 Captain

B737 Captain

B744 First Officer

A330 First Officer

B747 First Officer

B767 First Officer

B737 First Officer

B744 Second Officer

A330 Second Officer

B747 Second Officer

B767 Second Officer”

Consideration

26    It is convenient to begin my consideration of the competing contentions by considering the terms of cl 13.4 of the Long Haul Agreement and whether the applicant pilots were “sufficiently qualified” to be considered for selection for the Brisbane vacancies.

27    It is apparent from the terms of cl 13.4 and not in contest, that Qantas provides training to its pilots so that pilots may qualify for promotion to a new grade or transfer to a different type of aircraft. What the Long Haul Agreement refers to as a pilot’s “category” is defined by cl 7 to mean the pilot’s status on an aircraft type. That use of the term “category” is also reflected in cl 2.2 of LOA 102A. A pilot’s category depends on both the pilot’s grade (Captain, First Officer or Second Officer) and the aircraft type that the pilot flies. The descending order of categories for the purpose of filling a vacancy of the kind which cl 2.1 of LOA 102A deals with is set out in cl 2.2.

28    It is not in contest that the promotion of a pilot to a higher grade (for instance from Second Officer to First Officer) requires the pilot to undergo training. It is also accepted that before a pilot can fly a particular type of aircraft, the pilot must be endorsed to fly that aircraft. Endorsement requires the pilot to undergo training. Training for promotion or for endorsement on an aircraft type is directly provided by Qantas.

29    What is apparent from the terms of cl 13.4 and in particular cl 13.4.4 and the definitions of “initial vacancy”, “residual vacancy” and “additional vacancy”, is that access to training opportunities provided by Qantas for pilots to qualify for promotion to a higher grade or to be endorsed on a type of aircraft, is ordinarily provided as a part of an annual “training block” and awarded to sufficiently qualified pilots in order of seniority. What is also apparent is that access to that training is provided by Qantas selecting a pilot for an available training place or slot, which is regarded as a “vacancy”. There is no consistency in the way in which the Long Haul Agreement refers to an available training slot. For instance, in the definition of “initial vacancy” that kind of vacancy is referred to as “a promotion and/or type transfer vacancy”. In cl 13.4.13 the description “training vacancy” is used. In its submissions Qantas referred to an available training slot as a “training vacancy”. For ease of reference, I will also refer to a vacancy of that kind as a “training vacancy”.

30    Clause 13.4 also deals with other types of vacancies. In particular cl 13.4.1(a) provides that seniority is also the basis for selection for a “transfer to a base station”. Base station vacancies are dealt with by cl 15 of the Long Haul Agreement. Relevantly, cll 15.1-15.3 provide:

15.1    Allocation to a base station

The Company will allocate each flight crew member to a base station.

15.2     Base station vacancies away from Sydney

Base station vacancies away from Sydney will be allocated:

15.2.1.    in accordance with this clause 15, clause 13 (Seniority) and a points system agreed between the Company and the Association; and

15.2.2.    not later than 21 days before the effective date of commencement of the basing.

15.3     Promulgating vacancies

15.3.1    When a vacancy occurs at a base station away from Sydney, the Company will promulgate the vacancy at least 60 days before the effective date of the basing and will provide the following information:

(a)     Base station;

(b)     Number and category;

(c)     Effective date;

(d)     Expected duration of basing;

(e)     Highest and lowest seniority number of flight crew members in the applicable category at the base station;

        (f)     Deadline date for bidding for the vacancy, provided the date will not be less than 30 days after promulgation of the vacancy.

15.3.2     Where vacancies occur in a category at more than one base station, the Company will (except in circumstances beyond the Company's control) promulgate the vacancies in order of expected effective date of commencement of the basings.

31    What the Long Haul Agreement refers to as a “base station vacancy” may or may not involve the pilot who is successfully selected for that vacancy undertaking promotional or aircraft type training. If the base station vacancy is awarded to a pilot already of the required grade and already endorsed to fly the type of aircraft to which the base station vacancy relates, there will be no need for the pilot to be trained. On the other hand, where Qantas has a shortage of a particular kind of pilot at a base station and an overall shortage of that kind of pilot, an attempt by Qantas to fill the base station vacancy will necessarily be associated with the advertising of and the selection of a pilot for a training vacancy.

32    Given that the terms of the Long Haul Agreement treat the availability of a training place as a vacancy in itself, a situation where a base station vacancy necessitates promotional and/or aircraft type training will necessarily involve both a training vacancy and a base station vacancy. It may well be the case (although the evidence was not clear), that for practical purposes, only a single selection process is utilised by Qantas as though only one vacancy arises. However, that cannot deny the fact that the terms of the Long Haul Agreement contemplate that two vacancies will be created and filled in that circumstance.

33    On the construction of the Long Haul Agreement for which AIPA contends, whether or not a base station vacancy gives rise to a training vacancy is not dependent upon whether Qantas chooses to create a training vacancy in order that the base station vacancy can be filled, but depends upon whether or not the most senior applicant for the base station vacancy requires promotional and/or aircraft type training. Thus, on AIPA’s case, if the most senior pilot applicant for a First Officer B737 base station vacancy in Brisbane is already a First Officer B737 pilot, no training is necessary and no training vacancy is created. However, if the most senior applicant for the base station vacancy is, as was here the case, a Second Officer not endorsed to fly B737 aircraft, a training vacancy is necessarily created and must necessarily be filled by that pilot.

34    It needs to be borne in mind in this respect that the training provided by Qantas, in order for a pilot to be promoted and endorsed on a new type of aircraft, is extensive. The uncontested evidence was that for a Second Officer (as each of the applicant pilots were at the relevant time) to be trained, so as to be qualified to perform the role of a First Officer operating the B737 aircraft, requires some 13 weeks of full-time training at a cost to Qantas in the range of $70,118 to $113,474.

35    I can see no warrant in the terms of the Long Haul Agreement for a construction which in effect obliges Qantas to create training vacancies for which it has no operational requirement. Given the significant financial consequences for Qantas of the imposition of such an obligation, it might be expected that if such an obligation existed, it would be the subject of clear and express terms.

36    The Long Haul Agreement does not contain any express terms which oblige Qantas to create a training vacancy. The best that AIPA can do is to contend that such an obligation arises by implication from the terms of paragraph (a) of cl 13.4.1.

37    By reference to that paragraph, AIPA contended that the most senior pilot who is “sufficiently qualified to undertake the training or duty required” for a vacant position is to be selected. Thus, an applicant pilot for a base station vacancy need only be sufficiently qualified to undertake the training necessary to perform the duty required by the vacant position, rather than be sufficiently qualified to undertake the duty required by that position. From that starting point, AIPA’s case must then depend upon an implication being drawn that in circumstances where the most senior applicant for the base station vacancy is not sufficiently qualified to undertake the duty, cl 13.4 requires Qantas to create a training vacancy in order that the successful pilot can undertake the training required to carry out the duty of the vacant position at the base.

38    Qantas contended that being sufficiently qualified for training and being sufficiently qualified for duty are not intended by the terms of paragraph (a) of cl 13.4.1 as alternative selection criteria in relation to the same kind of vacancy. That paragraph addresses training vacancies as well as base station vacancies. The alternative selection criteria provided by the paragraph are directed at the different kinds of vacancies dealt with by the paragraph. Thus, in relation to a training vacancy, to be eligible for selection the pilot must be sufficiently qualified to undertake the training. In relation to a base station vacancy, the pilot must be sufficiently qualified to undertake the duty.

39    When the terms of paragraph (a) of cl 13.4.1 are understood in the context which I have outlined, it seems to me that the construction contended for by Qantas must be accepted.

40    It follows that even if the gateway provided to long haul pilots by cl 2.2 of LOA 102A extends to base station vacancies, by reason of paragraph (a) of cl 13.4.1 of the Long Haul Agreement, none of the applicant pilots were eligible for selection in relation to the Brisbane vacancies because the vacancies in question were for positions involving duties that those pilots were not “sufficiently qualified” to undertake. In light of that conclusion, AIPA’s claims that Qantas breached cll 13.4.1 and 13.4.4 of the Long Haul Agreement and its consequential claims that cll 15.3.1, 15.3.2 and 15.3.3 of the Short Haul Agreement were breached must be dismissed.

41    Whilst it is unnecessary for me to decide the issue, I should record and explain why I have reached the view that the phrase, “All vacancies on B737 aircraft” in cl 2.1 of LOA 102A is not confined to training vacancies.

42    The word “vacancy” is not defined in LOA 102. The Integration Award to which cl 2.1 refers is of no assistance as to the intended meaning of the phrase in question. However, cl 13.4 of the Long Haul Agreement to which cl 2.1 of LOA 102A refers, is relevant and determinative. Given that cl 2.1 directs that all vacancies on B737 aircraft be allocated in accordance with cl 13.4 of the Long Haul Agreement, it must follow that the vacancies in question are the kinds of vacancies dealt with by cl 13.4 which arise on B737 aircraft.

43    As my earlier analysis explains, cl 13.4 deals with both training vacancies and base station vacancies. It is not in contest that both base station vacancies and training vacancies will be specific to an aircraft type. A base station vacancy for a B737 First Officer in Brisbane and a training vacancy for promotional and/or type training on a B737 aircraft, are each apt to be described as “vacancies on B737 aircraft”. The use of the word “all” to indicate the comprehensive scope of the intended operation of cl 2.1 reinforces that conclusion.

44    Furthermore, the opening paragraph of LOA 102A puts the matter beyond doubt. In that paragraph, LOA 102A is said to contain “the terms and conditions under which flight crew members will be transferred from long haul operations to short haul operations to operate B737 aircraft”. If “All vacancies” was construed as limited to “training vacancies”, then the manifest purpose of LOA 102A would be defeated. Long haul pilots would have access to training opportunities but no access to substantive positions operating B737 aircraft. What is intended by LOA 102A is that long haul pilots have access to substantive positions where they operate B737 aircraft within Qantas’ short haul operations. That objective would not be satisfied if the gateway provided by LOA 102A did not extend to base station vacancies.

Conclusion and orders

45    By reason of my conclusion that the pilot applicants were not sufficiently qualified to be eligible for consideration for selection for the Brisbane vacancies, the claims made by AIPA and the applicant pilots must be dismissed. No order for costs was sought and it follows that no such order should be made.

46     I should add that the task of construing both the Long Haul Agreement and the Short Haul Agreement has been made far more difficult than it should have been because of the fact that both are riddled with drafting inconsistencies. Each of the agreements is most obviously the product of many different contributions made by many different authors at many different times.

47    In construing those agreements I have been mindful of and applied the often cited observations of Madgwick J in Kucks v CSR Limited (1996) 66 IR 182 at 184:

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.

48    The time and expense involved in the determination of this claim may well have been avoided if Qantas and AIPA had taken more care to express their agreements in clear and consistent language. The interests of Qantas, AIPA and the members of AIPA are likely to be enhanced if a more careful approach is taken to agreements which may be made in the future.

Associate:

Dated:    19 February 2014