FEDERAL COURT OF AUSTRALIA

Qantas Airways Ltd v Australian Licensed Aircraft Engineers Association [2020] FCA 682

ORDERS

UPON THE APPLICANTS’ UNDERTAKING, BY ITS COUNSEL:

(a)    to submit to such order (if any) as the Court may consider to be just for the payment of compensation (to be assessed by the Court or as it may direct) to any person (whether or not that person is a party) affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

(b)     to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking.

THE COURT ORDERS THAT:

1.    Until the hearing and determination of the originating application or further order (the Court’s Decision), the second respondent be restrained from hearing or determining by way of arbitration the dispute the subject of Fair Work Commission proceedings numbered C2020/1880 and C2020/1881 (the Dispute).

2.    These orders be stayed for 48 hours and thereafter discharged if the second respondent determines to adjourn the hearing of the Dispute and stay any interlocutory orders until the Court’s Decision.

3.    The question of the jurisdiction of the second respondent to deal with the dispute be determined first and separately from the question of declaratory relief.

4.    The hearing be expedited.

5.    Costs be reserved.

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

REASONS FOR JUDGMENT

KATZMANN J:

Introduction

1    None of us needs reminding that we are in the middle of a global pandemic caused by the spread of the novel coronavirus. It is notorious that the pandemic has taken an enormous toll on numerous sectors of the economy, including the aviation industry. Qantas Airways Ltd, Australia’s largest and oldest airline, and Jetstar Airways Pty Ltd, its budget subsidiary, have suspended all “regularly scheduled” international passenger flights and substantially reduced the number of domestic flights. On 19 March 2020, Qantas and Jetstar (the Airlines) announced that they would be standing down around two-thirds of their workforce. Employees were informed by email that “due to circumstances beyond [their] control, travel demand has evaporated” and the Airlines “have no work for most of [their] people”.

2    Employees who were stood down without pay include a number of licensed aircraft maintenance engineers (LAMEs). Those stand downs were purportedly made under stand-down clauses in enterprise agreements, which enable the Airlines to deduct payment from any employee who “cannot usefully be employed” because of a “stoppage of work through any cause for which Qantas cannot reasonably be held responsible” (in the case of the Qantas Agreement) or “by any cause which Jetstar cannot reasonably prevent” (in the case of the Jetstar Agreement). Each of these agreements also includes a dispute resolution clause which sets down a procedure for resolving “dispute[s] arising in the workplace about matters arising under [the] Agreement”.

3    On 26 March 2020, the Australian Licensed Aircraft Engineers Association (ALAEA), which is entitled to represent the industrial interests of LAMEs employed by both Qantas and Jetstar, filed applications with the Fair Work Commission seeking that it deal with disputes regarding the stand downs.

4    The Airlines claim that the Commission has no jurisdiction to deal with the disputes and filed an originating application in this Court on 12 May 2020 seeking constitutional writs to permanently restrain or prohibit the Commission from hearing or determining by arbitration the disputes or parts of the disputes. They also seek declaratory relief with respect to certain questions common to both disputes. The effect of the declarations they propose is that, with respect to LAMEs who were stood down without pay during two discrete periods referred to in the applications in the Commission, there was “a stoppage of work through any cause for which Qantas cannot reasonably be held responsible” and “a stoppage of work by any cause which Jetstar cannot reasonably prevent”. Those periods are from 29 March 2020 until 22 April 2020 in the case of Qantas and from 1 April to 2 May 2020 in the case of Jetstar.

The present application

5    The orders the Airlines presently seek are interlocutory. Their interlocutory application is to restrain the Commission from arbitrating the disputes until the hearing and determination of the originating application. The application was supported by an affidavit sworn by Peter Edgar Smith, the Head of Industrial Relations, International and Engineering at Qantas, on 12 May 2020. The ALAEA relied on an affidavit from Stephen Ross Purvinas, its Federal Secretary, affirmed the day before the hearing and forwarded to my chambers that evening.

Jurisdiction

6    It is not in dispute that the Court has jurisdiction to hear the present application or indeed the originating application. Section 39B of the Judiciary Act 1903 (Cth) gives the Court jurisdiction to grant an injunction or a writ of prohibition against officers of the Commonwealth and members of the Commission are officers of the Commonwealth. Section 39B(1A)(c) gives the Court jurisdiction to hear any matter arising under the Fair Work Act 2009 (Cth) (FW Act) and s 562 of the FW Act confers jurisdiction on the Court “in relation to any matter (whether civil or criminal) arising under this Act”. As Bromberg J explained in Teys Australia Beenleigh Pty Ltd v Australasian Meat Industry Employees Union [2015] FCA 1033 at [19], “[a] genuine dispute as to the meaning and effect of a term of an enterprise agreement that confers rights or imposes obligations is a matter which may properly be said to arise under the FW Act”, either because the right or duty owes its existence to the federal law or depends on federal law for its enforcement or because the right claimed is conferred by, or under, the FW Act. Here, there is no doubt on the evidence that there is a genuine dispute between the Airlines and the ALAEA.

The relevant principles for granting interlocutory relief

7    The relevant principles for granting interlocutory relief are well-established.

8    The Court must be satisfied that the Airlines have a prima facie case, in the sense that there is a serious question to be tried that, if the evidence remains as it is, it is probable that at trial they will be entitled to relief. The Court must also be satisfied that the balance of convenience is in their favour, that is to say, the inconvenience or injury which they would be likely to suffer if interlocutory relief were refused outweighs or is outweighed by the injury which the ALAEA would suffer if interlocutory relief were granted. See, for example, Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 at [67].

9    Since the relief the Airlines seek is in the nature of an anti-suit injunction, they must establish that the interests of justice favour the action in this Court proceeding first: Transport Workers Union of Australia v Lee (1998) 80 IR 106 at 109 per North J, applying Pegasus Leasing Ltd v Cadoroll Pty Ltd (1996) 59 FCR 152 at 156 (Lee and Tamberlin JJ), and Teys at [27] per Bromberg J.

The proceeding before the Commission

10    In its Form 10 application to the Commission concerning Qantas (the Qantas application), the ALAEA said that the Qantas stand-down announcement on 26 March 2020 would affect approximately 66% of its LAME workforce. It contended, in effect, that the stand downs are invalid because, despite “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, “in any event, the stood down LAMEs can be ‘usefully employed’ during the period of proposed stand-down” in “heavy maintenance, addressing time-deferred defects, corrosion repairs, and routine and non-routine aircraft maintenance”.

11    The ALAEA identified the following as the steps that had already been taken to resolve the dispute under the dispute resolution procedure specified in the Qantas Agreement:

 1.    Meetings on 18 and 20 March.

2.    Correspondence from ALAEA to Qantas on 25 March 2020 (attached and marked “E”).

12    In its Form 10 application concerning Jetstar, the ALAEA advance the same contentions and stated that the stand downs would affect approximately 70% of Jetstar’s LAME workforce or 146 of the 200 employed LAMEs. Additionally, it complained that neither the ALAEA nor the individual employees had been consulted about the selection criteria used to identify the employees to stand down and that Jetstar had indicated the LAMEs were to be rotated on a one month on, one month off basis.

13    The steps the ALAEA said had been taken to resolve the dispute under the dispute resolution procedure in the Jetstar Agreement were the same as those identified in the Qantas application.

14    The evidence indicates that Qantas had arranged a meeting with the ALAEA on 18 March. A number of Qantas executives attended, including the CEO of Qantas Domestic and Freight; the CEO of Qantas International; the Executive Manager of Qantas Engineering; the Head of Line and Intermediate Maintenance, Qantas Engineering; and the Executive Manager of Industrial Relations for Qantas. The ALAEA attendees were Rod Wyse, the ALAEA President and a Qantas LAME; Mark Gant, ALAEA trustee and Qantas Duty Maintenance Manager (Sydney), and Glynn Sowter, an ALAEA Industrial Officer. Mr Smith also attended. It seems that the meeting was called to inform the ALAEA about the impact of the global pandemic on the operations of the Qantas Group and its intention to issue stand-down notices to employees over the forthcoming weeks.

15    Mr Smith described the meeting as “an information briefing”. He said there were “no substantive discussions” about whether or not the prospective stand downs were permissible and the ALAEA representatives did not call into question the validity of the stand downs. That much does not seem to be in issue.

16    Later the same day, senior executives from Jetstar met with the same ALAEA representatives for the same purpose. Mr Smith deposed that he was informed by Mariella Zanello, Head of Employee Relations at Jetstar, who was one of the attendees, that there were “no substantive discussions” at that meeting either about whether or not the stand downs were permissible and the ALAEA representatives, who attended the meeting, did not call them into question. Again, this evidence is not apparently contested.

17    On 20 March, at the invitation of Mr Smith, ALAEA representatives attended a further meeting with Qantas and Jetstar executives. At that meeting, the ALAEA, through Mr Purvinas, argued that there was useful work which could be performed by ALAEA members. He offered a number of examples. John Walker, the Head of Line and Intermediate Maintenance with Qantas Engineering, and Christopher Snook, Executive Manager Qantas Engineering, denied that the work was required or useful “in all of the circumstances”. According to Mr Smith, at no stage during the meeting did any ALAEA representative ‘identify any disagreement, issue or dispute in relation to whether there had been a “stoppage of work”’ or question the legitimacy of that decision by the Airlines to stand down employees other than to raise the issue of the availability of useful work. Mr Purvinas’s response was that he “made it clear” that his members did not accept the stand downs and “the ALAEA contended that the stand downs were not authorised under the enterprise agreement”. He said there was “a robust debate” which “mostly focused on the work that remained available”, both ordinary work which still needed to be done at a level which could not be performed solely by remaining staff working the usual hours as well as alternative work that would be of benefit to Qantas either in the short or long-term.

18    The correspondence referred to in the applications consisted of a letter emailed to Mr Smith and copied to Ms Zanello. The letter, dated 25 March 2020, was signed by Mr Purvinas. In the letter Mr Purvinas wrote:

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.

(Original emphasis.)

19    He proceeded to expand upon the useful employment question, referring to the examples he offered at the meeting of 20 March 2020. He argued that Qantas was in a position to absorb the economic downturn and accommodate the ALAEA’s request “with respect to the identified Useful Employment” and invited Qantas to meet again with the ALAEA to discuss work that could keep its members usefully employed. He concluded the letter by saying that, should the Qantas Group not accede to the ALAEA’s request, it was on notice that the ALAEA considers the stand downs to be unlawful and reserved the right to take “the requisite legal action”.

20    On the question of useful employment, ALAEA has filed evidence with the Commission which, it contended in its submissions filed with the Commission, demonstrated that work presently required to be performed by the Airlines exceeds that which could be performed by those LAMEs who have not been stood down and that there is a significant amount of available work which will ultimately need to be performed but which has been deferred or delayed due to the reduced workforce. It argued:

This is unsurprising. Some planes are still flying. In addition, planes which have been grounded cannot simply be grounded and forgotten: ongoing maintenance must be done. The fleet size has not reduced. Finally, there is – as in any enterprise – a substantial “bucket list” of work which remains available.

21    In its submissions to the Commission, the ALAEA also contended that a reduction of work is not a stoppage and anticipated stoppages which do not eventuate will not justify withholding wages.

22    Further the ALAEA submitted that, even if there were a stoppage of work within the meaning of the term in the Agreements, it was not the result of a cause for which Qantas could not reasonably be held responsible or Jetstar could not reasonably prevent. Its argument is that the power to stand down employees is “a recourse of last resort” and “is not available as a response to mere economic downturn”. The ALAEA submitted that, in contrast to stand downs made after an order requiring a shop to close, for example, or a law preventing employers from opening on a certain day, where the stand downs directly resulted from an external event, the decisions taken by the Airlines were business decisions made in response to a downturn in trade and were therefore unauthorised.

23    All of these arguments were supported by reference to authorities.

24    In summary, the ALAEA’s case is that the stand downs are not lawful because the Airlines, upon whom the onus lies, have not demonstrated that:

(1)    The relevant LAMEs cannot be usefully employed (the useful employment issue); and/or

(2)    There was a stoppage of work (the stoppage issue); and/or

(3)    Even if there was a stoppage of work, it was caused by the global pandemic or the Government’s response to it (the causation issue).

25    A directions hearing was held on 2 April 2020. Evidently Mr Parry QC, who appeared for the Airlines on the present application, appeared for them there, too.

26    On 3 April 2020 Commissioner Spencer issued amended directions. The directions identified the questions for arbitration and fixed a timetable for the filing of evidence and other material and submissions, and the hearing dates. The matter was listed for a three-day hearing to commence on 9 June 2020.

27    By agreement, the two disputes would be heard together.

28    The questions for arbitration were agreed as follows:

1.    Does the Fair Work Commission (FWC) have jurisdiction to arbitrate the Qantas Dispute:

(a)    insofar as it involves the ALAEA's contention in paragraph 5(a) of its Form F10; and

(b)     insofar as it involves the ALAEA's contention in paragraph 5(b) of its Form F10.

2.     Does the FWC have jurisdiction to arbitrate the Jetstar Dispute:

(a)     insofar as it involves the ALAEA's contention in paragraph 6(a) of its Form F10; and

(b)     insofar as it involves the ALAEA's contention in paragraph 6(b) of its Form F10.

3.    On 25 March 2020, Qantas wrote to a number of its permanent LAMEs (Stood Down Qantas Employees) notifying them that, due to temporary changes that Qantas had implemented to its business in response to a ‘cessation of demand for international flying and a dramatic decline in the demand for domestic flying’ flowing from the Coronavirus response, they would be stood down without pay from 29 March 2020 to 22 April 2020. In so doing, Qantas purported to exercise a right under clause 14.6 of the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 (Qantas Agreement).

Did clause 14.6 of the Qantas Agreement, correctly interpreted and applied in the circumstances of this case, permit Qantas to stand down the Stood Down Qantas Employees?

4.     On 24 March 2020, Jetstar wrote to a number of its permanent LAMEs (Stood Down Jetstar Employees) notifying them that, due to temporary changes that Jetstar had implemented to its business due to a ‘cessation of demand for international flying and a dramatic decline in the demand for domestic flying’ flowing from the Coronavirus response, they would be stood down from 1 April 2020 to 2 May 2020. In so doing, Jetstar purported to exercise a right under clause 30.5 .1 of the Jetstar Engineering & Maintenance Enterprise Agreement (Jetstar Agreement).

    Did clause 20.4 of the Jetstar Agreement, correctly interpreted and applied in the circumstances of this case, prevent Jetstar from implementing the stand downs of the Stood Down Jetstar Employees on and from 1 April 2020, until the arbitration of the Jetstar Dispute had been heard and determined?

5.     Did clause 30.5.1 of the Jetstar Agreement, correctly interpreted and applied in the circumstances of this case, permit Jetstar to stand down the Stood Down Jetstar Employees?

29    On or about 27 April 2020 the ALAEA’s submissions, prepared by Ms Saunders of counsel, were filed and served.

30    On 5 May 2020 Herbert Smith Freehills, who act for the Airlines, wrote to the ALAEA:

We refer to the above matters, the directions for the filing of materials dated 3 April 2020 (as amended 27 April 2020) and the evidence and submissions filed by the ALAEA in relation to agreed questions 3-5.

Although the position is not clear, it appears to us based on the ALAEA’s outline of submissions that it seeks to agitate another issue associated with the stand downs for consideration and determination by the Commission: namely, whether the “cause” of any “stoppage of work” (assuming there was one) was one which our clients “cannot reasonably be held responsible” / “cannot reasonably prevent”. This argument presents itself most clearly from paragraphs 8(a) and 69-71 of the outline. Indeed, those paragraphs (on one view) appear to accept that there has been a relevant “stoppage of work”, but contend that it was for a cause within our clients’ control (paragraph 8(a) is the clearest in this respect).

We ask that you clarify, by 5.00pm today, the exact way the ALAEA puts its case on the questions of “stoppage of work”, “causation” and “useful work”. Our clients should not be left guessing about these matters after receiving your outline of submissions, especially when it has a significant impact on the nature of the case (legal and factual) they have to meet.

As you will see from our clients’ materials relevant to questions 1 and 2, it is our clients’ contention that any dispute about a “stoppage of work” was never in contemplation until the filing of the Form F10s and did not proceed through the dispute resolution clause. If it is now the ALAEA’s case that there was or may have been a “stoppage of work” but that it was (in any event) for a cause our clients could reasonably prevent/ be responsible for, then we too would take the position that this subject matter of “dispute” was never agitated through any of the steps in the dispute resolution procedures, or indeed in the Form F10s, and has arisen for the first time in the outline of submissions.

Given the particular circumstances of this case and the existing directions, we do not seek some preliminary ruling on that particular matter, but note that if this is a separate ground upon which the ALAEA contends the stand downs were not permitted by the Agreements, we will contend, as we have done with “stoppage of work” under questions 1 and 2, that the Commission has no jurisdiction to deal with that aspect of any dispute the ALAEA may have.

In addition, the pursuit of such an argument now involves a more detailed and involved evidentiary case from our clients than was previously in contemplation. Previously, our clients’ evidence was going to be engineering focussed in a way which explained by reference to the actual and predicted network of flying, what engineering work remained useful and what did not.

The addition of a “causation” argument requires our clients (practically, without accepting any legal requirement) to provide evidence about the changes to the network of flying, including how and why they arose. This sort of evidence was not previously in contemplation and the relevant witness who could provide it is on leave this week.

Relatedly, we note that much of the evidence of Mr Purvinas about “useful work” relates to base maintenance in Brisbane and that our central witness with respect to that material, is also on leave this week.

For all of these reasons, including having regard to the extension for the filing of the ALAEA’s outline of submissions from 24 to 28 April 2020 (and the offer of a corresponding extension for our clients), we:

•     seek that the ALAEA clarify the scope of its case, including (in particular) any “causation argument” (as referred to above), by 5.00pm today;

•     confirm that if a separate causation argument of the type contemplated is pursued, that our clients’ jurisdictional objections will extend to it and that the ALAEA should prepare accordingly; and

•     seek the ALAEA’s consent to amend paragraphs [6] and [7] of the existing directions, to refer to Tuesday, 19 May 2020 and Friday, 29 May 2020 respectively. We still think in light of the listed hearing dates (9-11 June) that this will leave sufficient time for all parties to adequately prepare for the hearing.

We would appreciate a reply to all matters herein by 5.00pm today.

31    The ALAEA replied the same day:

We write in response to your correspondence of today’s date.

The ALAEA contends that:

a.     there has not been ‘a stoppage of work through any cause that Qantas cannot be held reasonably responsible’ or ‘a stoppage of work of work by any cause which Jets tar cannot reasonably prevent’ respectively; and

b.     essentially and alternatively, if there has been such a stoppage the LAMEs can nevertheless be usefully employed.

The first involves, in respect of both agreements, a compound phrase. To enliven its power to stand down employees under the Agreements, your clients must demonstrate:

a.     that a stoppage has occurred; and

b.     its cause; namely that it is (to paraphrase) outside their control.

As you observe, both limbs are addressed in the ALAEA’s submissions. This is the correct approach.

We appreciate, without comment as to its merits, your client’s contention that this question is outside the scope of the dispute. This was made apparent at the directions hearing on 2 April 2020. At that hearing, Mr Parry spoke at some length about:

a.     your client’s apparent surprise that this had been raised, and its associated jurisdictional objection; and

b.     the additional evidentiary burden that this would allegedly impose on it.

Directions were agreed at that hearing which programmed your client’s jurisdictional objections (including the above) for hearing on an expedited basis. The next day, your client proposed alternative directions, which we agreed to.

Importantly, your client’s proposed directions - as well as having the jurisdictional issue determined simultaneously with the substantive matter- in practice accommodated the time Mr Parry had previously indicated would be necessary for your clients to prepare their evidence including in respect of whether there was a stoppage of the relevant kind.

As such, evidence as to the existence of a stoppage has always been required. Even if your clients somehow did think that, despite the clear wording of the clauses they rely on, this did not encompass its cause, it is difficult to see how this could present a more onerous evidentiary burden.

Your clients - both sophisticated and experienced industrial operators with access to extremely high level specialist internal and external legal advice - presumably gave serious thought to the question before standing down hundreds of our members without pay. They must have made a fact-based determination that all requirements of the clause were satisfied. It should not, as a matter of common sense, be particularly difficult to set out that factual basis in evidence.

In that context, it is difficult for us to understand the point of your letter, although we do hope this response assists you in some way. We note that your clients do not seek the Commission’s intervention in respect of their concerns. Nevertheless:

a.    if you consider it necessary to supplement your submissions on jurisdiction, we have no objection, but ask that any such supplement be provided by close of business, 8 May 2020;

b.     if you consider that the F10s require amendment, please advise (including as to why this would be necessary, noting that this is not a court of pleading); and

c.     if your clients’ concerns as to the evidence they must put on mean that they require more time, by all means seek it - however, we will not be in a position to agree until it is actually explained what material must be sourced that is not readily available and was not, viewed sensibly, always required.

32    Two days later, the Airlines filed an application in the Commission for a stay or adjournment of the Commission proceedings pending the determination of the proceeding in this Court. At that stage, however, no application had been filed in this Court. The Commissioner was only provided with a draft. It is perhaps unsurprising in the circumstances that the application was refused. Apparently no request for reasons has been sought.

Is there a prima facie case?

33    The Airlines contended that they had a strong prima facie case in support of the relief they seek regarding the limits on the Commission’s jurisdiction. They argued that the steps identified by the ALAEA in its Form 10 applications were insufficient to satisfy the conditions for referral to the Commission laid down in the Agreements.

34    The relevant enterprise agreements are the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 10 (Qantas Agreement) and the Jetstar Airways Engineering & Maintenance Enterprise Agreement 2018 (Jetstar Agreement).

35    The Commission’s jurisdiction over the two disputes is derived from the two Agreements.

36    The dispute settlement clause in the Qantas Agreement relevantly provides:

6.    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.

…

37    The dispute settlement clause in the Jetstar Agreement is similar. It relevantly provides:

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 the dispute to the FWC for conciliation and if conciliation is unsuccessful, arbitration.

…

38    Shortly put, the Airlines’ case on the question of the Commission’s jurisdiction is that the ALAEA’s application to the Commission was premature; the internal procedures prescribed by the respective clauses of the enterprise agreements had not been followed or completed, and until or unless those steps are taken, the combined effect of those provisions and ss 595 and 739(3)–(5) of the FW Act is that the Commission has no jurisdiction. They relied on The Australian Workers’ Union v MC Labour Services Pty Ltd [2017] FWCFB 5032 at [23]–[26] and [40]–[41] and Australian Nursing and Midwifery Federation v Japara Healthcare Limited [2018] FWC 3918 at [28]–[32].

39    In Japara, the dispute resolution procedure was at least arguably distinguishable in that referral to the Commission could not occur until “all agreed steps for resolving it [had] been taken”, a matter the Commission emphasised in [30] of its reasons. In MC Labour Services the referral to the Commission could only be made within 14 days of a decision of the Victorian Building Industry Disputes Panel. Be that as it may, the Full Bench affirmed the position taken by Commissioner McKenna at first instance that the Commission did not have jurisdiction at the time to deal with the alleged dispute because the initial step of taking the dispute to the relevant site representative had not been taken and that was “a mandatory term and a precondition for the dispute to then be referred to the Disputes Panel, and eventually to the Commission”. In the present case, it was not disputed that the internal procedures had to be taken before the Commission could arbitrate the dispute.

40    Furthermore, the Airlines’ position is that the Commission can only arbitrate the dispute that was the subject of the antecedent in-house steps. They maintain that the dispute the Airlines have asked the Commission to arbitrate is a broader and therefore different dispute than any dispute that was on foot before they lodged their application with the Commission.

41    On a literal construction of the relevant clauses in the Qantas and Jetstar Agreements, the evidence given by Mr Smith suggests that the preconditions were not satisfied. At [86]–[87] of his affidavit he said:

I am not aware of any Qantas or Jetstar employee raising any question, issue, disagreement or dispute with their local supervisors or managers (including Line Maintenance Managers, Duty Operations Managers or Supervisors), either directly or via the ALAEA, with respect to the stand downs prior to the filing of these applications in the Commission, including:

(a)    whether there had been a “stoppage of work” in either Qantas or Jetstar within the meaning of the Fair Work Act or the respective enterprise agreements (or at all); or

(b)    Qantas or Jetstar’s right to stand employees down in circumstances where there is no useful work for them to perform.

Given the significant nature of the issue for the Qantas Group as a whole and the impact on very large numbers of the entire Qantas Group workforce, if any such matters had of [sic] been raised with the above supervisors or managers of that type/level, I would be very confident that those supervisors or managers would have relayed those matters to either myself (for Qantas) or Ms Zanello (for Jetstar). Ms Zanello has informed me that she is also not aware of any such issue being raised either, as identified in paragraph 86 above.

42    The Airlines submitted that their contention that the necessary steps were not taken before the application was made to the Commission is “a fortiori” the case when it comes to the questions of stoppage and causation, neither of which was raised “in any way” before the ALAEA filed its application in the Commission.

43    While there is a substantial issue about how the dispute resolution clause should be construed, to which I will come in due course, I accept that the Airlines have made out a prima facie case on jurisdiction.

Where do the balance of convenience and the interests of justice lie?

44    The Airlines submitted that the balance of convenience is strongly in their favour.

45    First, they argued that there is a “substantial jurisdictional and merit case” before the Commission with respect to each dispute; the directions made by the Commission contemplate the Commission dealing with the jurisdictional and substantive questions together; they are due to file their evidence and submissions on the factual questions (stoppage, causation, and useful employment) by 19 May 2020, and they should not be put to the time, effort and expense of doing so when the Commission’s jurisdiction to engage in that process at all is in serious issue.

46    Second, they argued that the jurisdictional question before the Commission is the same question arising for determination in this Court and the Commission’s decisions are reviewable for excess of jurisdiction. In practice, they submitted that any decision in the Commission proceeding will be reviewable on that basis, regardless of the outcome on the merits.

47    Third and consequently, they contended that neither the ALAEA nor its members would be materially prejudiced if the jurisdictional question is conclusively determined now. They argued that, if the Commission proceedings were allowed to take their course, “which would presumably include an appeal on jurisdiction”, the resolution of the dispute would inevitably be delayed and this would add to “the prospect of further fragmentation of the proceedings”.

48    The second submission may be accepted. Irrespective of the merits of the Airlines’ case, however, I have considerable difficulty with the first.

49    While there is no doubt that it would be more efficient to have the jurisdictional question determined first, the fact that the issues have been slated for determination together is of the Airlines’ own making.

50    The Airlines were not entirely frank with the Court about this matter.

51    During the hearing I inquired whether they had asked the Commission to deal with jurisdiction as a separate, preliminary question. This was the reply:

MR PARRY: Well, we were involved in – some of decision-making in the Commission. And there was issues raised about dealing with the jurisdictional issue. Ultimately we saw that as unsatisfactory and – I think we deal with this in our submissions in paragraph and footnote 44, where we consented to directions that were being made. And when we consented to those directions back on 3 April as we say in footnote 44, that consent to those directions was provided at a time before the broader stoppage issue was in play, that is, the issue that goes to the whole business of Qantas and Jetstar, before the causation issue was in play and before the applicants being asked appreciated the volume of material that the union planned to file on the useful work issue. And also, to be blunt, the underestimation of the nature and extent of the work involved …

52    In his affidavit, Mr Smith mentioned only the amended directions made on 3 April 2020. He did not disclose the original directions or the reason for the amendment. It transpired that the amended directions were made at the Airlines’ request.

53    Mr Purvinas said at [41]–[42] of his affidavit:

At 6pm AEST on 1 April 2020, the Commission held a directions hearing. At the conclusion of that hearing, the parties agreed on directions that would have had the ALAEA’s proposed interim order in respect of the Jetstar stand down clause, and Qantas’s jurisdictional objection, heard before the substantive matter. As best as I recall, the agreed hearing date was 24 April 2020, although I could be wrong about that. The matters were certainly going to be heard before the end of April.

On 2 April 2020, I am informed that Qantas’ counsel contacted our counsel proposing alternative directions, which had the jurisdictional objections heard at the same time as the substantive dispute. Although the ALAEA’s preference was for its interim order to be heard quickly, we agreed to this in the interest of avoiding further disputation and having the proceedings continue in an orderly way.

(Emphasis added.)

54    In other words, this was not just a case of the Airlines consenting to the Commission hearing the jurisdictional and substantive questions together; it was their idea.

55    I do not accept that the delay would not cause any prejudice either to the ALAEA or to the employees they represent. There is some prejudice to the ALAEA which has incurred costs in the Commission proceeding for which the Airlines have not offered compensation. Delay in the determination of the dispute would have an obvious impact on the employees.

56    There are other considerations militating against the grant of relief.

57    First, not all questions may be resolved in this Court. If the Airlines lose their jurisdictional argument but obtain the declarations they seek, the residual question of whether the employees are unable to be usefully employed will still have to be heard by the Commission.

58    Second, there appears to be no immediate threat of irreparable harm to the Airlines if the interlocutory relief they seek is not granted: ResMed Limited v Australian Manufacturing Workers’ Union (AMWU) [2016] FCAFC 23 at [15] (Jessup, Buchanan and Katzmann JJ). The Commission has not yet determined the jurisdictional question. If the Airlines’ case is as strong as they contend, they should be able to persuade the Commission that the application before it cannot proceed. If Qantas were to fail on this and any of the other issues, permission to appeal is not required; it has an appeal as of right to the Full Bench and the appeal is in the nature of a rehearing: Australian Manufacturing Workers’ Union v Silcar Pty Ltd [2011] FWAFB 2555; 208 IR 33. The Commission may grant Jetstar permission to appeal, should it seek it, and it must do so if it is satisfied that the appeal is in the public interest: FW Act, s 604(2). While there is no appeal to this Court from the Commission, if the Airlines’ jurisdictional challenge were to fail in the Commission, there was no dispute that they have a right to seek judicial review of that decision (see, for example, Maersk Crewing Australia Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union [2020] FCA 595 at [24]–[34] per Colvin J), even if, absent error of law on the face of the record, its other findings are beyond the reach of the Court (see Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v ALS Industrial Australia Pty Ltd (2015) 235 FCR 305 at [81] per Dowsett, Tracey and Katzmann JJ; Endeavour Energy v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (2016) 244 FCR 178 per North, Jessup and Reeves JJ).

59    Third, there is little doubt that the Commission can hear and determine the matter before it more quickly than this Court. That is a matter which weighs against the Airlines: see, for example, Paull v Linfox Australia Pty Ltd [2018] FCA 149 at [16] (Bromberg J). Hearing dates have already been fixed. A good deal of evidence has apparently been filed, including a statement from Mr Purvinas which, I was informed, exceeds 1,600 pages including annexures. Some submissions have also been filed. Since the Commission is not bound by the rules of evidence, absent agreement, not all of that evidence could be adduced in this Court.

60    Fourth, if, as the Airlines submitted, they would be put to considerable expense in assembling the evidence on the stoppage and causation questions, they could ask the Commission to vary its directions so as to defer a hearing on those questions until after the questions of jurisdiction and useful employment are heard and determined. In that event, if the useful employment question were determined in favour of the ALAEA, as Ms Saunders, who appeared for the ALAEA submitted, “the whole thing would fall away”. She informed the Court that the ALAEA would be open to that course and the matter “can be sensibly case managed by the Commission”.

61    Fifth, while I am persuaded that the Airlines have an arguable case, I am not convinced it is as strong as they claim.

62    As the ALAEA pointed out, an immediate difficulty arises because the Airlines are not merely seeking to restrain the Commission from dealing with the substantive dispute, they are seeking an order preventing the Commission from determining for itself whether it has jurisdiction to do so. There is no doubt that it is within the Commission’s power to decide that question and, if the Airlines do not like the answer, it is common ground that they can still seek relief in this Court.

63    On the remaining questions, the ALAEA accepted that the Commission’s jurisdiction depends on the terms of the dispute resolution processes in the enterprise agreements, but argued that the process in each agreement was “simple and not constrained by formality” and the evidence before the Court shows that it was followed both in form and in substance.

64    On the basis of Mr Purvinas’s evidence, the ALAEA argued that the Airlines’ central contention — that no individual employee raised the dispute with their supervisor — was untrue. Mr Purvinas stated in his affidavit that on 19 March 2020 he had spoken to Robert Toovey, a LAME employed by Jetstar, who is also an executive member of the ALAEA, and that Mr Toovey told him that he believed the stand downs were not authorised under the Agreement, that he disputed Jetstar’s power, that he had spoken to his supervisor about the issue, and that they were unable to resolve the dispute. Mr Purvinas also deposed that around 25 March 2020 he spoke to Luke Murray, an ALAEA official and a LAME employee of Qantas and that Mr Murray informed him that he had spoken to his Qantas manager about the stand downs, asking that he be stood down and replaced by another LAME, who had been stood down, but his request was not approved.

65    The evidence about the conversation with Mr Murray does not take the ALAEA’s case very far. The evidence about the conversation with Mr Toovey is closer to the mark. It is true that the evidence Mr Purvinas gave was hearsay. But there is no reason to believe that, if Mr Toovey put on evidence himself, it would not support Mr Purvinas’s account. I accept that it is unclear which supervisor Mr Toovey spoke to. But that is unlikely to be a matter of any moment and could easily be clarified.

66    In any event, there is a real issue as to how the relevant clauses should be construed.

67    The ALAEA submitted that, “in the context of a collective dispute” like the present, which could only be resolved by senior management, and where discussions at the supervisor level would be futile, it is “highly doubtful” that, correctly interpreted, the dispute resolution clauses require consultation with supervisors.

68    It seems to me that this submission has force.

69    The principles applying to the interpretation of an enterprise agreement were summarised by the Full Court in WorkPac Pty Ltd v Skene (2018) 264 FCR 536 at [197] (Tracey, Bromberg and Rangiah JJ):

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 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).

70    Amcor Limited v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 related to a certified agreement under the Workplace Relations Act 1996 (Cth). In that part of the judgment to which the Full Court referred in WorkPac, Kirby J said that, in combination, “the nature of the [agreement in question], the manner of its expression, the context in which it operated and the industrial purpose it served” suggested that the relevant clause should not be strictly construed but construed in a way “that contributes to a sensible industrial outcome such as should be attributed to the parties who negotiated and executed the [a]greement”. His Honour observed that that was the proper approach to interpreting clauses in certified agreements, expressing agreement with the oft-cited passage from the judgment of Madgwick J in Kucks v CSR Ltd (1996) 66 IR 182 at 184. His Honour emphasised two remarks in that passage, one of which was that “meanings which avoid inconvenience or injustice may reasonably be strained for”.

71    Not every industrial dispute, including disputes arising at the workplace about matters arising under an enterprise agreement or in relation to the National Employment Standards, start on the shop floor. It is hard to imagine that the intention of the parties to the Agreements was to require individual employees to speak to their immediate supervisors about a dispute arising out of circumstances which affect the entire workforce or substantial parts of it when their union is in discussions with senior management about it.

72    The ALAEA referred to the decision of the Full Bench in University of New South Wales v National Tertiary Education Industry Union [2009] AIRCFB 571; 184 IR 121 (Giudice J presiding) in which a similar dispute-resolution procedure appeared in the enterprise agreements the university had with the union. That required employees to first discuss the dispute with their supervisors before escalating the matter to the relevant Dean or Divisional Head and, only after this second step, was referral permitted to the Australian Industrial Relations Commission for resolution. The university submitted that there was insufficient evidence that the matter had been raised by the employees with their supervisors as required by the dispute settlement procedure and that it was not open to the union to act in a general representative capacity in that respect. The Full Bench remarked at [18] that the submission was based on a very narrow reading of the procedure and observed:

On that reading a collective dispute can only be dealt with in so far as it is constituted by the aggregate of a number of individual disputes, each of which must go through every step of the procedure. The settlement of such a dispute would necessarily also be confined to the specific employees identified. If this approach were to be adopted it would lead to some very inconvenient results, to say the least. Take a case involving the interpretation of a provision of an agreement about which only one employee raised an issue for resolution. The settlement of the dispute would be incapable of application to any other employees, with the result that each individual employee wishing to take advantage of it would need to raise an individual dispute for resolution.

73    The Full Bench went on to say at [19]:

The inconvenience of this approach is illustrated by the facts of this case. The main issue in dispute is whether the provisions of the agreement governing annual leave apply in the case of a shutdown or whether they give way to the terms of s 236(5) of the Act. The University’s position on this issue never altered. To require every employee to raise a separate dispute would be time-consuming, costly and self-defeating. On our reading of the procedures a dispute on a matter of general application can be raised by an individual employee and dealt with on a general basis. Dispute settlement procedures in agreements, to be effective, must be simple and easy to apply. The interpretation proposed would lead to delay and complexity in the application of the procedures in the agreements we are concerned with and tend to frustrate rather than promote the settlement of disputes. It should be rejected.

74    As for the other jurisdictional point, the subject matter of the dispute raised with senior management was whether the stand downs were permitted under the Agreements. The ALAEA submitted that a contention that an employee’s usual work is available, which, on the evidence, was advanced in the meeting on 20 March, is just as much a contention that there is no stoppage of work as it is an argument about whether useful work is available. The ALAEA also submitted that the fact that the questions were not formulated with precision before they were taken to the Commission does not change the inherent nature of the dispute.

75    In support of the contrary position, the Airlines relied on the decision of the Full Bench in SSX Services Pty Limited v The Australian Workers’ Union [2015] FWCFB 3964 for the proposition that the Commission lacks jurisdiction to deal with the dispute because the dispute that was taken to the Commission was not the dispute raised with management.

76    At first instance in SSX Services the Commissioner was satisfied that the employees could not be usefully employed but went on to decide that this was not for any of the reasons for which stand downs are permissible under the Act when that issue had not been addressed by either party. The Full Bench said at [18]:

The characterisation of disputes arises in various contexts under the Act, most particularly in relation to disputes arising from the application of awards and agreements. It is necessary to have regard to the nature of a dispute alleged in an originating application and the factual circumstances as they evolve for the purposes of conciliation and arbitration of the dispute.

77    That decision appears to be distinguishable. The Full Bench was not concerned with the jurisdiction of the Commission to arbitrate a dispute under a dispute resolution clause in an enterprise agreement. The power in question was the power of the Commission conferred by s 526 of the Act to deal with a dispute about the operation of Pt 3-5. Here, the Commission’s power to deal with the disputes was conferred by the Agreements and regulated by Pt 6-2.

78    Under the terms of the dispute resolution clauses in the Qantas and Jetstar Agreements, the Commission’s jurisdiction depends on whether the disputes relate to a matter arising under the Agreements or in relation to the National Employment Standards. That may be the only level of characterisation required as the subsequent discussion in SSX Services suggests. While I accept that the Airlines’ position is certainly arguable, I do not consider that SSX Services necessarily supports it.

79    Nevertheless, the assessment of harm to the applicant, if no injunction is granted, and the prejudice or harm to the respondent if it were, “is at the heart of the basket of discretionary considerations which must be addressed and weighed as part of the Court’s consideration of the balance of convenience and justice”: Samsung at [62].

80    While refusing the injunction poses no immediate threat of irreparable harm to the Airlines and granting it would cause some prejudice to the ALAEA and its members, and while the position in which the Airlines find themselves is largely of their own making, it seems to me that the Airlines do fall over the line.

81    Rightly or wrongly, it seems that the Airlines misapprehended the nature of the ALAEA’s case until it was spelled out in the written submissions filed on 27 April 2020. Perhaps, as Ms Saunders argued, it should have been apparent to them well before then.

82    But if the proceeding in the Commission were allowed to take its course, considerable expense may be unnecessarily incurred. The jurisdictional question should be resolved first and it is preferable that it be determined finally by the Court. That will either dispose of the dispute completely or in part and will be more efficient, since, whatever the outcome, the prospect of an application for judicial review is probably inevitable. The prejudice to the ALAEA and its members is addressed by the Airlines’ offer, through its counsel, of the usual undertaking as to damages.

83    Moreover, on balance, the interests of justice favour the determination in this Court of both jurisdiction and the stoppage and causation issues raised by the application for declaratory relief.

84    The same issue arose in Teys where the circumstances were very similar. In that case, as in this, the union brought proceedings in the Commission arising out of a dispute about the proper construction of a clause in an enterprise agreement under the terms of the dispute resolution clause in the agreement. If the dispute were resolved in the union’s favour, in all likelihood there would have been an underpayment of employee entitlements. In that case, as in this, the Commission issued directions regarding the filing and exchange of submissions and evidence and listed the matter for hearing. Eight days before the scheduled hearing date, the employer filed an originating application in this Court seeking declaratory relief and an interlocutory injunction prohibiting the Commission from taking any further steps to determine the dispute until such time as this Court determines. The employer’s solicitors wrote to the Commission asking for the directions to be vacated and the hearing to be adjourned pending the determination of the application in the Court. The employer also raised a jurisdictional challenge on the ground that the requisite preliminary steps to resolve the dispute had not been taken. In addition, the employer contended that the dispute was not “a dispute about the matter or matters arising under [the enterprise agreement]”, within the opening words of the dispute resolution clause. In that case, as in this, the Commission rejected the employer’s application that the hearing be vacated.

85    Bromberg J was persuaded that the interests of justice favoured the determination of the Court action first. His Honour did so for six reasons. Many of those reasons apply equally here.

86    First, this Court’s specialist function is the determination of controversies concerning existing rights and liabilities, including under the FW Act. In contrast, his Honour said, that is not the traditional function of the Commission. His Honour explained:

True it is that the FWC has been given some ability to address rights and liabilities through its capacity as a private arbitrator, but that is not its specialist function. I recognise that the FWC does deal with the interpretation of enterprise agreements and their consistency with provisions of the Act. But, that is different to the final determination of the legal rights of the parties under the FW Act, that being the specialist function of this Court.

87    Second, the Commission is an inferior tribunal and would be assisted by the reasons for judgment of a superior court of record.

88    Third, the dispute was “not without difficulty”. It raised complex legal issues concerning the interpretation of the scheme under the FW Act for the making of enterprise agreements and their variation, which deserve the attention of a superior court.

89    Fourth, that is especially so where the issues raised are of general importance, as his Honour considered them to be.

90    Fifth, if the substantive question continues to determination in private arbitration and in this Court, there is the potential for inconsistent answers. An appeal to the Full Bench could only be brought if permission was granted, in the circumstances of that case. There is no right of appeal to a court. And it has been held that constitutional writs will not go to the Commission in its capacity as a private arbitrator.

91    Sixth, there is the potential for delay. The Court can move quickly to determine the substantive question and the delay would not be great. The factual issues are limited.

92    While there are obvious parallels between this case and Teys, there are also some important differences.

93    First, as the ALAEA submitted, the decision in Teys involved a pure question of interpretation. Here, there are mixed questions of fact and law.

94    Second, if the jurisdictional objections do not prevail, the dispute will not end in this Court as the useful employment issue would remain to be determined, whereas proceeding in the Commission would resolve the entire dispute through a binding arbitral award: Energy Australia Yallourn Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2018) 264 FCR 342.

95    Third, contrary to the Airlines’ bare assertion, the dispute over the lawfulness of the stand downs does not appear to raise complex legal issues. Stand-down clauses have a long history. Although stand down is not included in the list of matters that may be included in a modern award (FW Act, s 139), it was an allowable award matter under the Workplace Relations Act 1996 (Cth). The learned authors of the 8th edition of Macken’s Law of Employment point out at [7.100] that the typical award clause allowing stand down provided that an employer may deduct payment for any day an employee cannot be usefully employed for various reasons including “any stoppage of work by any cause for which the employer cannot reasonably be held responsible”. The Airlines claimed that was no authority “going back in the past or more recent that helps or sets out the law with regard to stoppage of work or causation...”. Yet, the ALAEA discussed the history and referred to some of the case law in its written submissions to the Commission, which were annexed to Mr Smith’s affidavit and to which it referred in its written submissions to this Court. One of those authorities is from the highest court in the land and is nearly a hundred years old: Pickard v John Heine & Son Limited (1924) 35 CLR 1.

96    Fourth, both Agreements provide for the resolution of disputes by private arbitration.

97    On the other hand, the fact that each of the Agreements provides for the resolution of disputes by private arbitration does not preclude the parties from invoking the jurisdiction of the Court in an appropriate case: TCL Air Conditioner (Zhongshan) Co Ltd v Judges of the Federal Court of Australia (2013) 251 CLR 533 at [76]; Teys at [42]. In any case, there is express provision for it in the Qantas Agreement (cl 6.1.3).

98    More relevantly, the issues the ALAEA raises in the Commission are of general importance and their resolution has potentially wide ramifications, well beyond the affected LAMEs, indeed, well beyond the parties.

99    The evidence indicates that the Airlines have stood down around 20,000 employees. Numerous other businesses have stood down employees in the wake of the current pandemic and the Government’s response to it. While there is no evidence about the stand-down clauses in any other enterprise agreement, it is more than likely they are similar in terms to the clauses in the Qantas and Jetstar Agreements. As the Airlines submitted, most stand-down provisions in enterprise agreements have common historical roots and use common language. The issues the ALAEA raises also bear on the interpretation of s 524(1)(c) of the FW Act, which relevantly provides that “[a]n employer may … stand down an employee during a period in which the employee cannot usefully be employed because of … a stoppage of work for any cause for which the employer cannot reasonably be held responsible”. It is in the interests of justice that questions of such general and widespread application and importance be determined by a superior court and not left to private arbitration.

100    Both the costs of this proceeding and the prospective delay can be mitigated if the parties and their lawyers are sensible and conduct themselves in accordance with their obligations under s 37N of the Federal Court of Australia Act 1976 (Cth). Amongst other things, they should consider agreeing on the facts and, if necessary, serving notices to admit facts.

101    It is highly desirable that the jurisdictional question be determined first and to facilitate that course I propose to make an order to that effect. I will also order that the hearing of that question be expedited.

Conclusion

102    Notwithstanding the eloquent arguments advanced against the application by Ms Saunders on behalf of the ALAEA, I am satisfied that the Airlines have made out their case for interlocutory relief. Nevertheless, I propose to follow the course McKerracher J adopted in One Tree Community Service Inc v United Voice [2019] FCA 1309, when granting relief of this kind, that is to stay the operation of the injunction for 48 hours to give the Commission the opportunity to adjourn the proceeding in that forum, pending the resolution of the proceeding in this Court.

Associate:

Dated:    19 May 2020