Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 (10 May 2012) Last Updated: 10 May 2012 FEDERAL COURT OF AUSTRALIA Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 Citation: Australian and International Pilots Association v Fair Work Australia [2012] FCAFC 65 Parties: AUSTRALIAN AND INTERNATIONAL PILOTS ASSOCIATION v FAIR WORK AUSTRALIA, MINISTER FOR TERTIARY EDUCATION, SKILLS, JOBS AND WORKPLACE RELATIONS, QANTAS AIRWAYS LIMITED, QCATERING LIMITED, THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION and TRANSPORT WORKERS UNION OF AUSTRALIA; MINISTER FOR FINANCE AND SERVICES IN HIS CAPACITY AS MINISTER RESPONSIBLE FOR WORKPLACE RELATIONS IN THE STATE OF NEW SOUTH WALES and MINISTER FOR EMPLOYMENT AND INDUSTRIAL RELATIONS IN THE STATE OF VICTORIA File number: NSD 1975 of 2011 Judges: LANDER, BUCHANAN AND PERRAM JJ Date of judgment: 10 May 2012 Catchwords: ADMINISTRATIVE LAW – judicial review – whether jurisdictional error – whether jurisdictional fact – whether fact established – whether declaration should be made INDUSTRIAL LAW – protected industrial action – employer response action – whether proposed lock out organised in response to employee claim action – whether union’s protected industrial action should have been terminated Legislation: Fair Work Act 2009 (Cth), s 19 , 19 (1), 19 (3), 171 , 172 , 176 , 176 (1), 186 (5), 240 (2), 240 (3), 266 , 266 (1), 266 (2), 340 , 341 (1), 341 (2), 342 (1), 408 , 409 , 410 , 411 , 411 (a), 413 , 413 (2), 413 (3), 413 (4), 413 (5), 413 (6), 413 (7), 414 , 414 (2), 414 (3), 414 (5), 414 (6), 415 , 416 , 417 , 418 , 419 , 420 , 421 , 421 (3), 423 , 423 (6), 424 , 424 (1), 424 (2), 424 (3), 424 (4), 562 , 563 (b), 575 , 576 , 577 , 578 , 590 (1), 590 (2), 591 , 595 , 627 Federal Court of Australia Act 1976 (Cth), s 20(2) Cases cited: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 cited Attorney-General for the State of Queensland v Riordan [1997] HCA 32 ; (1997) 192 CLR 1 cited Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 cited Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297 cited Coal & Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 ; (2011) 192 FCR 78 cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 cited House v The King [1936] HCA 40 ; (1936) 55 CLR 499 cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 cited Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 cited Plaintiff M70/2011 v Minister for Immigration & Citizenship [2011] HCA 32 ; (2011) 280 ALR 18 cited R v Alley; Ex parte NSW Plumbers and Gas Fitters Employees’ Union [1981] HCA 61 ; (1981) 153 CLR 376 cited R v Cohen; Ex parte The Attorney-General for the State of Queensland [1981] HCA 66 ; (1981) 157 CLR 331 cited R v Connell; Ex parte The Hetton Bellbird Collieries Ltd [1944] HCA 42 ; (1944) 69 CLR 407 cited Date of hearing: 5-6 March 2012 Date of last submissions: 8 March 2012 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 185 Counsel for the Applicant: Mr A Moses SC with Mr A Slevin Solicitor for the Applicant: Turner Freeman Lawyers Counsel for the First Respondent: The First Respondent did not appear Counsel for the Second Respondent: Mr T Howe QC with Mr R Niall SC and Mr A Berger Solicitor for the Second Respondent: Australian Government Solicitor Counsel for the Third and Fourth Respondents: Mr F Parry SC with Mr A Gotting Solicitor for the Third and Fourth Respondents: Freehills Counsel for the Fifth Respondent: The Fifth Respondent did not appear Counsel for the Sixth Respondent: The Sixth Respondent did not appear Counsel for the Minister for Finance and Services (NSW) (Intervening): Mr P Hanks QC with Mr S Benson Solicitor for the Minister for Finance and Services (NSW) (Intervening): NSW Crown Solicitor’s Office Counsel for the Minister for Employment and Industrial Relations (VIC) (Intervening): Mr P Hanks QC with Mr S Benson Solicitor for the Minister for Employment and Industrial Relations (VIC) (Intervening): Corrs Chambers Westgarth IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1975 of 2011 BETWEEN: AUSTRALIAN AND INTERNATIONAL PILOTS ASSOCIATION Applicant AND: FAIR WORK AUSTRALIA First Respondent MINISTER FOR TERTIARY EDUCATION, SKILLS, JOBS AND WORKPLACE RELATIONS Second Respondent QANTAS AIRWAYS LIMITED Third Respondent QCATERING LIMITED Fourth Respondent THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION Fifth Respondent TRANSPORT WORKERS UNION OF AUSTRALIA Sixth Respondent MINISTER FOR FINANCE AND SERVICES IN HIS CAPACITY AS MINISTER RESPONSIBLE FOR WORKPLACE RELATIONS IN THE STATE OF NEW SOUTH WALES First Intervener MINISTER FOR EMPLOYMENT AND INDUSTRIAL RELATIONS IN THE STATE OF VICTORIA Second Intervener JUDGES: LANDER, BUCHANAN AND PERRAM JJ DATE OF ORDER: 10 MAY 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application be dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1975 of 2011 BETWEEN: AUSTRALIAN AND INTERNATIONAL PILOTS ASSOCIATION Applicant AND: FAIR WORK AUSTRALIA First Respondent MINISTER FOR TERTIARY EDUCATION, SKILLS, JOBS AND WORKPLACE RELATIONS Second Respondent QANTAS AIRWAYS LIMITED Third Respondent QCATERING LIMITED Fourth Respondent THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION Fifth Respondent TRANSPORT WORKERS UNION OF AUSTRALIA Sixth Respondent MINISTER FOR FINANCE AND SERVICES IN HIS CAPACITY AS MINISTER RESPONSIBLE FOR WORKPLACE RELATIONS IN THE STATE OF NEW SOUTH WALES First Intervener MINISTER FOR EMPLOYMENT AND INDUSTRIAL RELATIONS IN THE STATE OF VICTORIA Second Intervener JUDGES: LANDER, BUCHANAN AND PERRAM JJ DATE: 10 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT LANDER J: The Application before the Court I have had the advantage of reading the reasons of Buchanan J and Perram J. This is an application for judicial review of a decision made by Fair Work Australia (FWA) on 31 October 2011 when FWA decided: [1] Pursuant to s.424(1)(d) of the Fair Work Act 2009 it is ordered that all protected industrial action in relation to any or all of the proposed agreements set out in paragraph 2 be terminated with immediate effect. [2] The proposed agreements are: (a) Transport Workers Union (Qantas Airways Limited) Enterprise Agreement 8 (b) Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 9 (c) Qantas Airways Limited Flight Crew (Long Haul) Enterprise Agreement 8 [3] This order is binding on: (a) Qantas Airways Limited (b) QCatering Limited (c) Transport Workers’ Union of Australia (d) The Australian Licensed Aircraft Engineers Association (e) Australian and International Pilots Association (f) All employees who will be covered by any of the proposed agreements listed in paragraph 2. The Australian and International Pilots Association (AIPA), which was affected by that decision, seeks an order quashing the decision, and an order directing FWA to hear and determine the application that was before it according to law. The Full Court heard this application in its original jurisdiction and pursuant to s 20(2) of the Federal Court of Australia Act 1976 (Cth). FWA FWA is established by s 575 of the Fair Work Act 2009 (Cth) (the Act) and has the functions mentioned in s 576 of the Act. Pursuant to ss 577(a) to (d) it is obliged to perform those functions and exercise its powers in a manner that: (a) is fair and just; and (b) is quick, informal and avoids unnecessary technicalities; and (c) is open and transparent; and (d) promotes harmonious and cooperative workplace relations. Further, in performing its functions and powers it must take into account the objects of the Act, including the objects in Part 5 - 1 of the Act, equity, good conscience and the merits of the matter, and the need to help to eliminate discrimination of any kind: s 578. FWA may inform itself in relation to any matter before it in such manner as it considers appropriate: s 590(1). It may inform itself in any of the ways mentioned in s 590(2). FWA is not bound by the rules of evidence and procedure: s 591. FWA may only deal with a dispute if FWA is expressly authorised to do so under or in accordance with the Act: s 595(1). A dispute is not defined in the Act. If authorised, FWA may deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion: s 595(2). FWA can only deal with a dispute by arbitration if it is expressly authorised to do so under or in accordance with the Act: s 595(3). Enterprise Agreements Part 2 - 4 of the Act deals with enterprise agreements. The two objects of that Part are identified in s 171 of the Act. They are first to provide a simple, flexible and fair framework that enables collective bargaining in good faith, particularly at the enterprise level, for enterprise agreements that deliver productivity benefits; and secondly to enable FWA to facilitate good faith bargaining and the making of enterprise agreements, including through making bargaining orders, dealing with disputes where the bargaining representatives request assistance, and ensuring that applications to FWA for approval of enterprise agreements are dealt with without delay. Division 2 of Part 2 - 4 deals with the making of an enterprise agreement. Section 172 defines an enterprise agreement. Relevantly, an agreement will be an enterprise agreement if it is about one or more of the following matters: (a) matters pertaining to the relationship between an employer that will be covered by the agreement and that employer’s employees who will be covered by the agreement; (b) matters pertaining to the relationship between the employer or employers, and the employee organisation or employee organisations, that will be covered by the agreement; (c) deductions from wages for any purpose authorised by an employee who will be covered by the agreement; (d) how the agreement will operate. Bargaining Representatives Division 3 of Part 2 - 4 contemplates that employers and employees will be represented by bargaining representatives and s 176 identifies the bargaining representatives for an enterprise agreement. An employer that will be covered by an enterprise agreement will become a bargaining representative for the agreement. An employee organisation is a bargaining representative of the employee who will be covered by the agreement if the employee is a member of the organisation: s 176(1). The Parties The applicant, AIPA, is an organisation of employees for the purpose of the Act and is registered under the Act. AIPA is the bargaining representative of its organisation of employees for the purpose of an enterprise agreement with Qantas Airways Limited (Qantas) and QCatering Limited (QCatering). Qantas carries on the business of an airline operator throughout Australia and internationally. QCatering provides catering services to Qantas. Qantas is the bargaining representative for Qantas for an enterprise agreement with AIPA. Qantas has employees within its organisation who are members of AIPA. Qantas also has employees who are members of the Australian Licensed Aircraft Engineers Association (ALAEA), which is the fifth respondent, and the Transport Workers Union of Australia (TWU), which is the sixth respondent. The fifth and sixth respondents did not appear on this application, but their absence is not material. The second respondent is the Commonwealth Minister for Tertiary Education, Skills, Jobs and Workplace Relations (the Commonwealth Minister). The two interveners, who were jointly represented on this application, are respectively the Minister for Finance and Services in New South Wales and the Minister for Employment and Industrial Relations in Victoria. The Dispute In August 2010 Qantas commenced negotiations with AIPA, which was acting as the bargaining representative for long haul pilots employed by Qantas, for a new enterprise agreement (the Qantas Airways Limited Flight Crew (Long Haul) Enterprise Agreement 8). In the same month Qantas also commenced negotiations with ALAEA for a new enterprise agreement. In May 2011 Qantas commenced negotiations with the TWU, the bargaining representative appointed by Qantas’ ramp, baggage handling and catering employees, for a new enterprise agreement. Thus, by May 2011 Qantas and QCatering were engaged in negotiations with three bargaining representatives, being the three separate unions in relation to three new separate enterprise agreements. Industrial Action The Act contemplates that employees and employers will take industrial action. “Industrial action” is defined in s 19 of the Act as: (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; (c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; (d) the lockout of employees from their employment by the employer of the employees. Section 19 contemplates that an employee may take industrial action which falls short of failing to attend for work, but also contemplates that an employee may take action by failing to attend for work: s 19(1)(c). Section 19 contemplates that an employer may take industrial action by locking out employees from their employment by preventing the employees from performing work under their contracts of employment without terminating those contracts: s 19(1)(d) and s 19(3). The Act does not contemplate an employer taking any industrial action short of locking out an employee. Protected Industrial Action Section 408 provides that particular industrial action is to be protected industrial action for a proposed enterprise agreement. Section 408 provides: Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following: (a) employee claim action for the agreement (see section 409); (b) employee response action for the agreement (see section 410); (c) employer response action for the agreement (see section 411). An employee claim action as defined by s 409 is industrial action that is organised or engaged in for the purpose of advancing claims in relation to an enterprise agreement, and is organised or engaged in against an employer who will be covered by the agreement by a bargaining representative of an employee who will be covered by the agreement and meets common requirements set out in Subdivision B of Division 2 of Part 3-3: s 409(1). Industrial action must be authorised by a protected action ballot conducted in accordance with Division 8 of the Part 3-3: s 409(2). Sections 409(3), (4) and (5) address particular actions which those sections deem not to be industrial action, but those actions are not relevant on this application. Employer response action, which is referred to in s 408(c), is defined in s 411. Section 411 provides: Employer response action for a proposed enterprise agreement means industrial action that: (a) is organised or engaged in as a response to industrial action by: (i) a bargaining representative of an employee who will be covered by the agreement; or (ii) an employee who will be covered by the agreement; and (b) is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and (c) meets the common requirements set out in Subdivision B. Employer response action must be organised or engaged in by an employer who will be covered by the enterprise agreement against employees who will be covered by the same agreement. It also must be organised or engaged in as a response to industrial action by a bargaining representative of an employee who will be covered by the agreement: s 411(a). Employer response action can be protected industrial action if it is engaged in in accordance with s 411 in response to employee claim action which is or is not protected action. Section 411(a) only requires the employer industrial action to be organised or engaged in as a response to industrial action, not necessarily to protected industrial action. Section 410 addresses employee response action which contemplates employee action organised or engaged in as a response to industrial action by an employer. All three sections require either the employee claim action, the employer response action, or the employee response action to meet the common requirements set out in Subdivision B. Section 413 identifies the common requirements for industrial action to be protected industrial action. Section 413 provides: Common requirements (1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement. Types of proposed enterprise agreement (2) The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or multi-enterprise agreement. Genuinely trying to reach an agreement (3) The following persons must be genuinely trying to reach an agreement: (a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement — the bargaining representative; (b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement — the bargaining representative of the employee. Notice Requirements (4) The notice requirements set out in section 414 must have been met in relation to the industrial action. Compliance with orders (5) The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement: (a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement — the bargaining representative; (b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement — the employee and the bargaining representative of the employee. No industrial action before an enterprise agreement etc. passes its nominal expiry date (6) The person organising or engaging in the industrial action must not contravene section 417 (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.) by organising or engaging in the industrial action. No suspension or termination order is in operation etc. (7) None of the following must be in operation: (a) an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement; (b) a Ministerial declaration under subsection 431(1) terminating industrial action in relation to the agreement; (c) a serious breach declaration in relation to the agreement. Section 413(2) has no operation in relation to this application. Section 413(3) has been met. There was no suggestion that anyone or any organisation had contravened any orders in s 413(5) or s 413(6). Section 413(7) is important and will be addressed later. Section 414 requires the person engaging in employee claim action to give written notice of the action to the employer of the employee, and the period of the notice must be at least three working days, or if a protected action ballot order for the employee claim action specifies a longer period of notice that period of notice: s 414(2). Notice cannot be given until after the results of the protected action ballot for the employee claim action have been declared: s 414(3). Section 414(5) addresses employer response action, and it provides: (5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must: (a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and (b) take all reasonable steps to notify the employees who will be covered by the agreement of the action. The employer does not have to comply with any period before which the employer response action is to commence, but must take all reasonable steps to notify the employees who will be covered by the agreement of the action. The Significance of Protected Industrial Action The significance of industrial action being protected industrial action is addressed in Subdivision C. Section 415 provides: (1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve: (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. (2) However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action. Section 415 means that any employee claim action or employee response action, or employer response action, does not give rise to any action in law, except in the circumstances provided for in sub-sections (1) and (2). It means that an employer cannot take action against an employee who is engaged in protected industrial action for any breach of any contract of employment, or for any other reason connected with that protected industrial action. On the other hand, an employee cannot take action against an employer for the employer’s breach of contract if the employee has been locked out by an employer engaging in protected industrial action (by engaging in employer response action). Section 416 gives further protection to the employer by allowing the employer to refuse to make payments to the employees in relation to the period in which the employer engages in employer response action. Therefore, if an employer engages in employer response action and locks out an employee, the employer may at the same time decline to make any payments to the employee during the period of the lock out, and the employer is protected from any proceedings that the employee might bring in respect of the employee’s contract of employment with the employer. The other consequence of an employee or an employer engaging in protected industrial action is that the employee or the employer, as the case may be, is not liable to be subject to an order under s 418(1). Section 418 provides: (1) If it appears to FWA that industrial action by one or more employees or employers that is not, or would not be, protected industrial action: (a) is happening; or (b) is threatened, impending or probable; or (c) is being organised; FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order. (2) FWA may make the order: (a) on its own initiative; or (b) on application by either of the following: (i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action; (ii) an organisation of which a person referred to in subparagraph (i) is a member. (3) In making the order, FWA does not have to specify the particular industrial action. (4) If FWA is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action: (a) some or all of which has not been taken before the beginning of the stop period specified in the order; or (b) which has not ended before the beginning of that stop period; or (c) beyond that stop period; FWA may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot. Section 418 obliges FWA to make an order that industrial action stop or not occur or not be organised if it appears that the industrial action is not or would not be protected industrial action. In those circumstances FWA must make a stop order which would have the effect of requiring the employer or the employee not to engage or threaten to engage in that kind of industrial action. Sub-section (2) allows FWA to make that order on its own initiative or on the application by a person affected or likely to be affected by the industrial action. However, if the employee or the employer is engaging in protected industrial action, FWA cannot require the protected industrial action to stop or not occur or not be organised pursuant to s 418. The importance of s 418 should not be overlooked. Section 418 requires FWA to make an order stopping any industrial action engaged in by an employee or an employer that is not protected. Thus the scheme of the Act is only to permit an employee or an employer to engage in protected industrial action as defined in ss 408, 409, 410 and 411. All other industrial action will be stopped by order of FWA pursuant to s 418. Suspension or Termination of Protected Industrial Action Division 6 of the Act addresses the suspension or termination of protected industrial action by FWA. Section 423 empowers FWA to make an order suspending or terminating protected industrial action for a proposed enterprise agreement that is being engaged in in the circumstances set out in s 423 but, in particular, only where FWA is satisfied that the protected industrial action has been engaged in for a protracted period of time and the dispute will not be resolved in the reasonably foreseeable future: s 423(6). The purpose of s 423 is to protect an employer, where an employee claim action is causing or is threatening to cause significant economic harm to the employer, or an employee, where the employer response action is causing or threatening to cause significant economic harm to any of the employees who will be covered by the agreement. Section 423 is designed to allow FWA to intervene in the dispute between the employer and the employee where one or both of the employers and the employees are suffering significant economic harm to lift the protection on the relevant protected industrial action. Section 424 is relevant to this proceeding. It provides: Suspension or termination of protected industrial action (1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that: (a) is being engaged in; or (b) is threatened, impending or probable; if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten: (c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or (d) to cause significant damage to the Australian economy or an important part of it. (2) FWA may make the order: (a) on its own initiative; or (b) on application by any of the following: (i) a bargaining representative for the agreement; (ii) the Minister; (iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L — the Minister of the State who has responsibility for workplace relations matters in the State; (iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory — the Minister of the Territory who has responsibility for workplace relations matters in the Territory; (iii) a person prescribed by the regulations. Application must be determined within 5 days (3) If an application for an order under this section is made, FWA must, as far as practicable, determine the application within 5 days after it is made. Interim Orders (4) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined. (5) An interim order continues in operation until the application is determined. There are other sections within Division 6 which empower FWA to suspend protected industrial action, but they are not relevant for the purpose of this proceeding. The Application to FWA Section 424(2) allows FWA to make the order on its own initiative or on an application by a bargaining representative or the Commonwealth Minister or the relevant State Minister. Here the Commonwealth Minister made an application under s 424 for an order to suspend or terminate protected industrial action being engaged in by Qantas, ALAEA, TWU and AIPA. The Commonwealth Minister sought relief because the Minister claimed that the protected industrial action was threatening to cause significant damage to the Australian economy or an important part of it: s 424(1)(d). Annexed to the Commonwealth Minister’s application was a chronology setting out “all industrial action engaged in to 29 October 2011 prepared by DEEWR (Department of Education, Employment and Workplace Relations) to monitor the status of the matter”. Also attached to the application was a media release by Qantas made on 29 October 2011 identifying Qantas’ industrial action. The Minister claimed in his application: The lockout by Qantas will extend the grounding of the entire Qantas fleet. This has clear potential to cause significant damage to one or more important parts of the Australian economy; namely, the Tourism and/or Aviation sectors. The attachment to the application identified the particular protected industrial action that had been taken by the three unions between April 2011 and October 2011. It is not an over-simplification to say that the protected industrial action taken by ALAEA and TWU had significantly more effect upon Qantas’ business than that taken by AIPA. In fact the only industrial action taken by AIPA over the period of time was on the following dates, and included the following action: 18 July 2011 AIPA notifies Qantas of protected industrial action by long haul pilots in the form of bans on complying with Qantas’ in-flight announcement policy ‘until further notice’ and performing work in a manner different to that which is customarily performed. 20 July 2011 AIPA notifies Qantas of protected industrial action by two long haul pilots in the form of a two minute work stoppage and a ban on working days off on 23 and 24 July 2011. 22 July 2011 AIPA members commence a ban on compliance with Qantas’ passenger announcement policy (excluding safety, security and regulatory announcements). Instead, pilots start making AIPA endorsed passenger announcements. 24 July 2011 One pilot engaged in two, two minute stoppages. 26 July 2011 AIPA notified of a single pilot to take industrial action. The proposal provided that the 747 pilot would “work to rule”, placing a ban on extending his tour of duty and not wearing his cap (part of the official uniform). 29 July 201 Ban on extended tour of duty (i.e. working beyond ‘scheduled’ times where necessary) by Captain Steven Anderson on a flight from Hong Kong to Melbourne. 28 October 2011 AIPA and Qantas due to meet before VP Watson. The Industrial Action taken by AIPA and Qantas The only industrial action that had been taken by members of AIPA (i.e. the long haul pilots) was in relation to the colour of the ties which the pilots wore and the announcements which they made at the conclusion of long haul flights. On Saturday 29 October 2011 Qantas gave AIPA notice under s 414(5) of the Act in the following form: NOTICE TO BARGAINING REPRESENTATIVES AND EMPLOYEES Notice of lock out To: All bargaining representatives for the proposed Qantas Airways Limited Flight Crew (Long Haul) Enterprise Agreement 8 All employees of Qantas Airways Limited who will be covered by the proposed Qantas Airways Limited Flight Crew (Long Haul) Enterprise Agreement 8 Take notice that: In accordance with section 414(5) of the Fair Work Act 2009 (Cth), Qantas Airways Limited (Qantas) hereby gives notice of a lock out of employees of Qantas who will be covered by the proposed Qantas Airways Limited Flight Crew (Long Haul) Enterprise Agreement 8 ( EA 8 ) in accordance with the provisions of this notice below. The lock out is organised and engaged in as a response to the following industrial action by employees organised by AIPA: ongoing ban relating to compliance with the Qantas uniform policy and substitution with an AIPA approved uniform policy; and ongoing ban relating to compliance with Qantas cabin announcement policy and substitution with an AIPA approved announcement. Who will be locked out? All employees who will be covered by the proposed EA 8 will be locked out, with the exception of the following groups of employees who WILL NOT be locked out: any A380, B747, A330 and B767 pilots who are either slipping in an overseas port at 8 pm Sydney local time on Monday 31 October 2011 (which for the purposes of this notice is the ‘ reference time ’); All A380, B747, A330 and B767 pilots who hold Administrative Supervisory appointments; All A380, B747, A330 and B767 pilots who hold Training Supervisory appointments as Training Captains Category A or Training Captains Category B and Training First Officers; any A380, B747, A330 and B767 pilots who are undertaking the ground and/or simulator component of a transitional training course in an Australian port and who are not undertaking line training. For the avoidance of doubt, the following pilots WILL be locked out: All A380, B747, A330 and B767 pilots who are in Australia at the reference time. When will the lock out commence? The lock out will commence at the ‘reference time’ (8 pm Sydney local time on Monday 31 October 2011) and will continue indefinitely until Qantas gives notice that the lock out will cease. Employees who are locked out are directed not to attend for, or perform any, work during the period of the lock out. Qantas will not make any payments for the duration of the lock out to those employees who are locked out. However, the lock out will not affect the employees’ continuity of employment. The notice advised AIPA and its members that Qantas would lock out AIPA employees from 8.00pm (EST) on Monday 31 October 2011, and that the lock out would continue indefinitely. By giving that notice Qantas was purporting to comply with s 414(5) so as to enable it to say that the lock out constituted employer response action for the purpose of s 411 and was therefore protected industrial action. The Commonwealth Minister treated the Qantas notice as complying with s 414(5) and the proposed lock out as constituting employer response action and therefore protected industrial action, and made the application to which I have referred under s 424 seeking the relief to which I have referred. Qantas simultaneously gave notice to ALAEA and TWU under s 414(5) and notified the employees of those unions that the employees to which the s 414(5) notice applied would be locked out from the same time as the AIPA employees. Grounding the Fleet At the same time as Qantas gave the notices to the three unions separately under s 414(5) , it announced that it would ground its airline fleet immediately except for those aircraft which were in flight. All aircraft were grounded at the time of the announcement made by Qantas’ CEO, Mr Joyce. Mr Joyce said: ANNOUNCEMENT ALAN JOYCE, QANTAS CEO 29 OCTOBER 2011 A crisis is unfolding within Qantas. Industrial action directed by the leadership of three unions – the Australian Licenced Aircraft Engineers Association (ALAEA) representing the licensed engineers, the Transport Workers Union (TWU) representing ramp, baggage and catering staff, and the Australian and International Pilots Association (AIPA) representing the long-haul pilots – is aimed at applying so much pressure on Qantas, so much pressure on our customers, and so much pressure on Australian business, that we will give in to their demands. In 15 months Qantas has reached agreement with more than 10,000 employees represented by four unions on five Enterprise Agreements – or one-third of the Qantas workforce. Over the same period we have been doing all we can to reach agreement with the ALAEA and AIPA and more recently with the TWU. What makes these union negotiations different? Two things. First, these three unions are sticking by impossible claims that are not just to do with pay, but also to do with unions trying to dictate how we run our business. The pilots’ union wants to force us to pay Jetstar pilots on codeshare flights the same high rates that they get at Qantas. This would set a wages precedent that would soon put an end to Jetstar and slash low-cost travel in Australia. Our only alternative would be to remove Qantas codesharing from Jetstar which would have the effect of making some key Qantas routes uneconomic. The licensed engineers want to bind Qantas maintenance to the past; to thumb their nose at world’s best-practice regulations, including those endorsed by Australia’s Civil Aviation Safety Authority; and continue with outdated work practices on new generation aircraft. The TWU was offered an exceptional deal but is sticking to its completely unrealistic claim that would prevent us from the sensible use of contractors. These are impossible demands. We cannot agree to them because they could ultimately put the Qantas Group at risk. The second thing that makes these unions different is that they are running utterly destructive industrial campaigns against Qantas and our customers, hurting all our employees and undermining Australian business. The situation is unsustainable. 70,000 affected passengers Over 600 flights cancelled 7 grounded aircraft Nearly $70 million in damage And $15 million in damage for every week that goes by. The unions’ industrial campaigns are designed to scare away customers. It has become impossible for Qantas to serve our third-party maintenance clients. They are trashing our strategy and our brand. They are deliberately destabilising the company. And there is no end in sight. Yesterday two unions declared their intention to escalate industrial action further and over an extended period. As one said earlier they want: “to bake Qantas slowly”. The pilots’ union has also said they are considering escalating their industrial campaign. They talk about job security, but the unions are on a path that would diminish the job security of their own members. Customers are now fleeing from us. Key high value domestic bookings on east coast routes are down by 25% on the same period last year. That’s the most lucrative part of our flying business and it is bleeding badly. International bookings have also fallen, with November bookings nearly 10% down on where we expected them to be – when Qantas International is already making significant losses. Our customer research shows an alarming increase in people who intend NOT to fly with Qantas. In our domestic business that number has surged from a normal 5% to 20%. The intention not to fly with Qantas internationally has surged to nearly 30%. Virgin Australia is the main beneficiary of this campaign and has announced capacity increases. The great irony is that it pays less, is less unionised and does its heavy maintenance offshore. Yet there is no union pressure on Virgin. This is a crisis for Qantas. If this action continues as the unions have promised, we will have no choice but to close down Qantas part by part. It goes without saying that this would have very grave consequences for jobs. Killing Qantas slowly would be a tragedy for Qantas and our employees. But it would also have a terrible domino effect right across Australia, affecting businesses large and small, tourism, freight and families. We have got to achieve a resolution to this crisis. We have got to bring this to an end. So I have no option but to force the issue. I have to activate the one form of protected industrial action that is available to me to bring home to the unions the seriousness of their actions, and to get them to forge sensible deals with us. I am using the only effective avenue at my disposal to bring about peace and certainty. In response to the unions’ industrial action, I announce that under the provisions of the Fair Work Act Qantas will lock out all those employees who will be covered by the agreements currently being negotiated with the ALAEA, the TWU and AIPA. I have informed the Government of this. The only exception to this is that no employee working overseas will be locked out and all staff overseas will continue to be paid. The lock-out will commence from 8pm on Monday night Sydney local time and will continue until further notice. Because the pilots, ramp, baggage and catering staff and licensed engineers are essential to the running of the airline, the lock-out makes it necessary for us to ground the fleet. However, I cannot wait until Monday to do so. This is a very tense environment. Individual reactions to this lock-out decision may be unpredictable. We are always conservative in our approach. For this reason, as a precautionary measure, we have decided to ground the Qantas international and domestic fleet immediately. I repeat, we are grounding the Qantas fleet now. Obviously, those flights that are currently in the air will complete their scheduled sectors. However as from now there will be no further Qantas domestic or international departures anywhere in the world. Jetstar and QantasLink will continue to operate. Express Freighters Australia and Atlas Freighters will continue flying. JetConnect will also continue to operate Qantas services across the Tasman. We are locking out until the unions withdraw their extreme claims and reach an agreement with us. The great majority of our staff have played no part in this damaging industrial campaign. On the contrary they have stepped up magnificently to try and minimise the union-inflicted damage. Until the lock-out commences at 8pm on Monday, all employees are required at work and will be paid. Once the lock-out commences: those employees who are locked out will not be required at work and will not be paid; and 2) All other employees are required at work and will be paid. We will be talking to those employees, their managers and their union representatives about how we best manage the impacts of this situation. I urge the members of the ALAEA, TWU and AIPA to consider their own interests and tell their leaders they want to reach reasonable and fair agreements that will be good for them and for Qantas. I want to say how sorry I am that this course of action has become necessary. We will be doing all we can to care for our customers. For those who are mid-journey, we will assist with accommodation and endeavour to help with alternate flights, and any other support we are able to give. We will provide a full refund to any customer who chooses to cancel their trip because their flight has been directly affected by the grounding of our fleet, and extend full rebooking flexibility for anyone wishing to defer their travel. Our customer service staff will have my full support to assist our customers in any way they can. We will have continuous updates on qantas.com and that will be the best source of information. We will also be using our Facebook and twitter feeds to keep customers updated. This course of action has been forced upon us by the extreme and damaging course chosen by the leaders of three unions. It is now over to them. The ball is in their court. They must decide just how badly they want to hurt Qantas, their members, our other employees, and the travelling public of Australia in pursuit of their destructive aims. The announcement grounding the Qantas fleet must be distinguished from the notice given to AIPA under s 414(5). Grounding the fleet was not industrial action under the Act. It was a commercial decision made as a consequence of taking industrial action to lock out the employees of the three unions. Although the fleet was grounded from the time of the announcement by Mr Joyce, the grounding did not amount to a lock out and had no economic consequences upon the employees. The employees of all three unions would have been entitled to be paid their entitlements at least until the lock out commenced. The lock out was not to commence until 8.00pm (EST) on Monday 31 October 2011 when it would have had the economic consequences for the employees provided for in s 416 of the Act. The Hearing before FWA and its Reasons The announcement was made at approximately 5.00pm on Saturday 29 October 2011. At approximately 8.30pm that evening the Commonwealth Minister filed the application seeking the relief to which I have referred. A full bench of FWA (which was constituted by Giudice J (the President) and Senior Deputy President Watson and Commissioner Roe) convened at 10.09pm for the hearing of the application. It continued hearing that application until 1.09am on Sunday 30 October when the proceedings were adjourned and recommenced at 2.11pm on the same day. The proceedings continued until 2.10am on Monday 31 October, when FWA gave its decision and made the orders referred to in [2]. In its reasons, which as I have said were published at 2.10am, FWA said, after referring to s 424 , that the three unions had been negotiating with Qantas for three separate enterprise agreements to apply to the pilots on long haul routes, ramp, baggage handling and catering employees, and licensed aircraft engineers. It referred to the attachment to the application to which reference has already been made, and then said: [4] In the case of the ALAEA negotiations it appears that: (a) Qantas has been in negotiations since August 2010 (b) there have been 47 formal bargaining meetings (c) there have been other meetings between the bargaining representatives (d) there have been 9 conferences of the parties conducted by Kaufman SDP (e) since May 2011 there have been 18 conferences in Fair Work Australia, the most recent on 24 October 2011 (f) one of the central claims of the ALAEA has been about job security; (g) since May 2011, the ALAEA has organised and engaged in industrial action. [5] As to the AIPA position: (a) Qantas has been in negotiations since August 2010 (b) there have been 35 formal negotiating meetings held (c) there have been mediation sessions conducted by Watson VP (d) one of the central claims of AIPA has been about a proposed job security (e) since July 2011, AIPA has organised and engaged in protected industrial action. [6] As to the TWU position: (a) Qantas has been in negotiations since May 2011 (b) there have been 17 formal negotiating meetings held (c) one of the central claims of TWU has been about site rates (d) since 20 September 2011, TWU has organised and engaged in protected industrial action, the latest being engaged in on 28 October 2011. It noted that Qantas had adduced evidence that the protected action taken by the unions prior to Qantas’ announcement had affected 70,000 passengers and led to the cancellation of 600 flights, as well as the grounding of seven aircraft and $70 million in damage. FWA said, after referring to evidence that had been adduced from the Secretary of the Department of Infrastructure and Transport, and the Secretary of the Department of Resources, Energy and Tourism, that: [10] It is unlikely that the protected industrial action taken by the three unions, even taken together, is threatening to cause significant damage to the tourism and air transport industries. The response industrial action of which Qantas has given notice, if taken, threatens to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services. The Qantas evidence was that the cost to it alone is $20 million per day. [11] We find that the requirements of s.424(1) have been made out with respect to the action of which Qantas has given notice in relation to the three proposed enterprise agreements. In the circumstances we are required to make an order either terminating or suspending the protected action. We have a variety of proposals before us which we now set out. The Minister’s primary position is the termination of the protected industrial action. His alternative position is the suspension of the protected industrial action for a period of not less than 120 days; Qantas seeks termination of the protected industrial action; The Victorian and New South Wales Ministers’ [sic] seek the termination of the protected industrial action; The Queensland Minister supports the position of the Federal Minister. AIPA’s primary position is the suspension of the protected industrial action for a period of not less than 120 days. It seeks a provision that within 4 weeks of the date of the Full Bench decision a report back be provided to Fair Work Australia on the progress of discussions between the parties, leave being granted to any party to apply on 48 hours notice for extension or termination of the suspension. ALAEA’s position is for a suspension of the protected industrial action for a period of not less than 90 days but has no objection to a period of 120 days and otherwise supports AIPA’s proposal. The TWU seeks a suspension of the protected industrial action for a period of not less than 90 days. It is prepared to provide an undertaking that it will participate in conciliation before Fair Work Australia. The ACTU’s position is for the suspension of the protected industrial action for a period of with [sic] 90 or 120 days, as judged appropriate. It also supports the additional safeguards proposed by the AIPA and TWU. FWA then considered whether it should make an order terminating or suspending the protected industrial action and resolved that the protected industrial action should be terminated. It made the orders to which I have referred: [2]. A fair reading of the transcript of the arguments and submissions put to FWA indicates that AIPA did not contend that FWA did not have jurisdiction to hear the Commonwealth Minister’s application. Rather it contended that Qantas’ action, insofar as it affected AIPA and its members, was an overreaction to the protected industrial action in which AIPA had engaged. Qantas’ lock out of the long haul pilots was disproportionate, so AIPA argued, to AIPA’s protected industrial action by the pilots, which was simply wearing red ties and making announcements at the end of flights. AIPA contended that any damage which had been done to Qantas, and which thereby might affect the Australian economy or any important part of it, was as a result of Qantas’ employer response action to ALAEA’s and TWU’s protected industrial action. AIPA contended that in those circumstances the protected industrial action should be suspended rather than terminated. AIPA did not argue that FWA could not suspend AIPA’s protected industrial action. The Application to this Court Section 562 of the Act invests this Court with jurisdiction in relation to any matter arising under the Act. Section 563(b) provides that the jurisdiction should be exercised in the Fair Work Division of the Federal Court if a writ of mandamus or prohibition or injunction is sought in the Federal Court against a person holding office under the Act. AIPA acknowledged that it would only succeed on this application if it could demonstrate jurisdictional error on the part of FWA. However, it claimed that jurisdictional error was demonstrated in the following way: 2.6 AIPA contends that the purported exercise of the power in s424(1) of the FW Act was affected by jurisdictional error in the following manner: (a) FWA failed to determine if one of the threshold issues for the termination of industrial action had been met, specifically if the pilot lockout would have been protected industrial action (Grounds (a), (b) and (c)); (b) FWA terminated AIPA’s industrial action without evidence that the threshold had been met (Ground (d)); and (c) FWA purported to treat the three independent bargaining periods and sets of industrial action as a “single job lot” without regard or proper regard to the specific facts and circumstances of each bargaining period/industrial action (grounds (e) to (h)). AIPA argued that the effect of an order under s 424 terminating or suspending protected industrial action is that if the employer or the employee continues to organise or engage in the industrial action the industrial action will not be protected and will not enjoy the benefits that are given by Subdivision C of Division 2 of Part 3-3, being the benefits referred to in ss 415 and 416. Specifically it means, for an employer, that an employer would not be immune from an employee suit in the event that an employer persisted with a lock out after an order was made under s 424. Moreover, an employer would not be entitled to rely upon s 416 and refuse to make payments to the employees if the employer persisted in locking out the employees after an order were made under s 424. AIPA contended that FWA had not found that Qantas was, by its lock out of AIPA employees, organising or engaging in protected industrial action, and therefore had failed to find that it had jurisdiction to hear the Commonwealth Minister’s application. It argued that Qantas’ action was not in response to AIPA’s protected industrial action as required in s 411 of the Act, and was therefore not protected industrial action, and that therefore FWA had no jurisdiction to hear the application. AIPA argued that AIPA’s protected industrial action had not been such as to give rise to a finding that the protected industrial action was threatening or would threaten to cause significant damage to the Australian economy. AIPA argued that FWA had failed to disaggregate the action being taken by the three unions, and therefore wrongly found that AIPA’s protected industrial action was a factor in the decision by Qantas to lock out AIPA employees. It argued that FWA exceeded its power by purporting to make an all-encompassing order binding AIPA and Qantas and TWU and ALAEA in circumstances where there was no basis in law for any such order to be made against AIPA. Consideration With one exception AIPA’s contentions should be rejected. The application should be dismissed. However, for the reasons which follow, FWA should not have made an order which included an order terminating the industrial action organised or engaged in by AIPA. It also ought not to have terminated the protected industrial action engaged in by ALAEA and the TWU, but as they are not parties to this application and have not challenged the order insofar as it applies to them, no more needs to be said about that part of the order. The Commonwealth Minister’s application was for the termination or suspension of protected industrial action engaged in by each of the unions and Qantas. AIPA is right to contend that AIPA’s protected industrial action could not on any understanding have been threatening significant damage to the Australian economy. Indeed FWA found, rightly in my opinion, at [10] of its reasons, that “[i]t is unlikely that the protected industrial action taken by the three unions, even taken together, is threatening to cause significant damage to the tourism and air transport industries.” On FWA’s own findings no order could be made terminating or suspending the protected industrial action being engaged in by any of the unions. Insofar as FWA otherwise ordered it fell into error. So much appears to have been conceded on this application. However, that finding does not assist AIPA because of the provisions of s 413(7). If FWA did not err in making an order terminating Qantas’ protected industrial action, s 413(7) would be engaged. Because of the provisions of s 413(7)(a), AIPA’s industrial action would no longer be protected because there would be in operation an order under Division 6 terminating industrial action in relation to the agreement. Therefore, no employee response action could meet the common requirements set out in Subdivision B, and the requirements in s 409 could not be met. Therefore, AIPA’s action would no longer be protected industrial action; AIPA’s protected industrial action only remains protected so long as the employee claim action for a proposed enterprise agreement is industrial action that meets the common requirements set out in Subdivision B. Therefore, so long as the FWA order terminating Qantas’ protected industrial action remains in force in respect of an enterprise agreement then AIPA’s employee claim action no longer has protected status. The real question then on this application is whether Qantas’ announced lock out to commence at 8.00pm (EST) on Monday 31 October 2011 amounted to protected industrial action. It could only be protected industrial action if in fact it came within s 411 and amounted to an employer response action. To be an employer response action it must have been organised or engaged in as a response to industrial action by a bargaining representative of an employee (in this case AIPA). AIPA contended that Qantas’ action was not in response to AIPA’s industrial action. In my opinion that contention must be rejected. The only industrial action that Qantas could have taken in response to AIPA’s protected industrial action was to lock out the relevant AIPA employees. That is what it did. It said it was doing so in response to AIPA’s protected industrial action. There was no evidence to the contrary. On this application AIPA must establish that FWA fell into error because Qantas’ industrial action was not protected (because it was not in response to the AIPA protected industrial action). AIPA has not adduced any evidence that would suggest that Qantas did what it did for any reason other than in response to AIPA’s industrial action. Qantas took industrial action by locking out those employees who were members of AIPA, ALAEA and TWU who were seeking three separate enterprise agreements. AIPA’s contention that Qantas locked out ALAEA and TWU employees in response to their protected industrial action, but did not lock out AIPA’s employees for the same reason, cannot be accepted. It could not have locked them out for any reason other than as a response to the AIPA protected industrial action. It might have been a very serious step that Qantas took, but it was a step available to it, and the only step available to it to bring to a head its disagreement with AIPA in relation to the negotiations which had proceeded for an enterprise agreement. It was able to take that step because there were simultaneous disagreements with ALAEA and TWU. Mr Joyce’s announcement made it clear that Qantas was responding to the unions’ industrial action. In his statement made at the time that the Qantas fleet was grounded Mr Joyce referred to the three unions’ industrial campaigns. In relation to the pilots he referred to their claim that Jetstar pilots should be paid the same high rates as Qantas pilots. He talked of the consequences of the three unions’ industrial campaigns and the destabilising effect upon Qantas. He said: Yesterday two unions declared their intention to escalate industrial action further and over an extended period. As one said earlier they want: “to bake Qantas slowly”. The pilots’ union has also said they are considering escalating their industrial campaign. In his statement he said: I have to activate the one form of protected industrial action that is available to me to bring home to the unions the seriousness of their actions, and to get them to forge sensible deals with us. I am using the only effective avenue at my disposal to bring about peace and certainty. In response to the unions’ industrial action, I announce that under the provisions of the Fair Work Act Qantas will lock out all those employees who will be covered by the agreements currently being negotiated with the ALAEA, the TWU and AIPA. I have informed the Government of this. The notice which was given to “all bargaining representatives for the proposed Qantas Airways Limited Flight Crew (Long Haul) Enterprise Agreement 8 and all employees of Qantas Airways Limited who will be covered by the proposed Qantas Airways Limited Flight Crew (Long Haul) Enterprise Agreement 8 ” in accordance with s 414(5) of the Act stated explicitly that the lock out was organised and engaged in as a response to the industrial action by employees organised by AIPA, namely the: ongoing ban relating to compliance with the Qantas uniform policy and substitution with an AIPA approved uniform policy; and ongoing ban relating to compliance with Qantas cabin announcement policy and substitution with an AIPA approved announcement. In its media release Qantas said: Qantas responds to industrial action Sydney, 29 October 2011 Qantas today announced that, from 8pm AEDT on Monday 31 October 2011, it will lock out all employees who will be covered by the industrial agreements currently being negotiated with the Australian Licenced Engineers Union (ALAEA), the Transport Workers Union (TWU) and the Australian and International Pilots Union (AIPA). This step is being taken under the provisions of the Fair Work Act in response to industrial action taken by these unions. ... Mr Strambi, Group Executive Qantas Airlines Operations, said in his oral evidence that Qantas organised and engaged in the lock out in response to the industrial action taken by the unions. Ms Bussell, Executive Manager of Industrial Relations, gave oral evidence also to the effect that Qantas’ action was in response to the industrial action of the unions. In my opinion there is overwhelming evidence that Qantas acted as it did in response to AIPA’s industrial action. AIPA has failed to establish as a matter of fact that Qantas’ action was not in response to AIPA’s employee claim action. FWA identified the circumstances in which the lock out had occurred and that the lock out would continue until the three unions abandoned a number of identified claims. It noted at [10] of its reasons that: ... The response industrial action of which Qantas has given notice, if taken, threatens to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services. The Qantas evidence was that the cost to it alone is $20 million per day. FWA there recognised that Qantas was acting in response to the protected industrial action engaged in by the unions. In [11] of its reasons FWA found expressly that the requirements of s 424(1) had been made out in respect of the lock out “in relation to the three proposed enterprise agreements.” In my opinion FWA understood that to exercise its jurisdiction under s 424 the Minister had to establish that Qantas was organising or engaging in protected industrial action. It had to be established that the Qantas lock out in relation to each of the separate unions was organised or engaged in as a response to industrial action by each of the three separate unions in relation to the three separate enterprise agreements. FWA addressed that question and found positively that Qantas’ action was protected industrial action. Once it had made that finding, and after it had found that Qantas’ protected industrial action was threatening to cause significant damage to the Australian economy or an important part of it, FWA was entitled to make an order terminating or suspending Qantas’ protected industrial action. Although the parties did not refer to the issue a member of the Court asked during the hearing whether the question whether Qantas’ lock out was organised or engaged in as a response to industrial action was a jurisdictional fact, and if so whether this Court could be satisfied that the jurisdictional fact had been made out to the requisite level of satisfaction. In my opinion that issue does not need to be resolved. FWA found that Qantas’ lock out was organised or engaged in in response to the protected industrial action of the three separate unions. If the question is a jurisdictional fact, in my opinion the evidence overwhelmingly supported the finding made by FWA, and in those circumstances AIPA could not discharge the onus resting upon it. In those circumstances, whether it is a jurisdictional fact or not, the fact has been established. Therefore, FWA had power to make an order terminating or suspending Qantas’ protected industrial action if FWA was satisfied that the protected industrial action had threatened, or was threatening, or would threaten to cause significant damage to the Australian economy or an important part of it. It was so satisfied, and therefore it was empowered to make the order that it did insofar as that order terminated Qantas’ protected industrial action. The effect of the FWA order meant that neither side was able to engage in the industrial action which it had with the immunity offered by s 415. AIPA also contended that FWA was wrong to make an order terminating the protected industrial action, and that instead it should have made an order suspending the industrial action. However, once it is understood that the only order that could have been made within jurisdiction was an order terminating or suspending Qantas’ protected industrial action, it is difficult to understand how AIPA could argue that Qantas’ protected industrial action should only be suspended. AIPA really has no interest in how long Qantas’ industrial action is to be prevented from continuing. One would have thought that absent s 413(7) AIPA would have argued for termination. Even if AIPA was entitled to be heard in relation to termination or suspension, the question of termination or suspension was very much a matter of discretion for the Tribunal and nothing has been advanced on this application to suggest that the exercise of that discretion in any way miscarried: House v The King [1936] HCA 40 ; (1936) 55 CLR 499. Qantas itself argued that its own protected industrial action should be terminated. The curiosity on an application such as this is, at least when it is brought by the Minister, that the party who has engaged in the protected industrial action which gives rise to an order under s 424 can argue that its own conduct should be required to be terminated or suspended, and can elect to argue for termination. An employer who takes protected industrial action and locks out its employees can, by submitting to an order under s 424 on an application brought by the Minister, or the employees’ bargaining representative, or even the employer itself, obtain the result that not only is its protected industrial action terminated but also the protected industrial action of the employees, because the employees’ industrial action loses its protected status. Once the employees have lost the protection for their industrial action, if the employees continue with the industrial action, the employees are liable to an order under s 418 stopping the unprotected industrial action from continuing. Orders The members of the Court are not agreed on the order to be made. We all agree that certiorari and mandamus should not issue. There is no point in bringing into this Court the orders made by FWA to quash those orders insofar as they related to AIPA, and perhaps even the other two unions, because the orders are of no force or effect. Once the order is made terminating Qantas’ protected industrial action in relation to the three separate enterprise agreements, the consequence is that none of the unions have any protection in relation to whatever industrial action they take after that time. Buchanan J would dismiss the application without making a declaration. Perram J would make a declaration that the order made by FWA was not authorised by s 424 as it applied to AIPA notwithstanding that AIPA did not argue before FWA that FWA did not have jurisdiction to make an order under s 424 directed to AIPA or its members. I would not make a declaration for these reasons. First, AIPA did not seek a declaration. It sought the issue of the Constitutional writs. Secondly, FWA’s order is not only directed to AIPA, but also ALAEA and TWU. Those unions were parties but did not appear. They have not sought a declaration. Thirdly, a declaration should not be made for the reasons given for rejecting the relief of certiorari and mandamus. The order purportedly terminated all protected industrial action by Qantas, QCatering, TWU, ALAEA, AIPA and all employees who will be covered by the proposed agreements. Once the order had effect against Qantas and QCatering, s 413(7) operated to remove the protected status of any industrial action engaged in by all of the other parties to the order. A declaration should not be made because it would not have any consequences for the parties: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582 per Mason CJ, Dawson, Toohey and Gaudron JJ. Conclusion For these reasons, the application should be dismissed. I certify that the preceding ninety-nine (99) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 10 May 2012 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1975 of 2011 BETWEEN: AUSTRALIAN AND INTERNATIONAL PILOTS ASSOCIATION Applicant AND: FAIR WORK AUSTRALIA First Respondent MINISTER FOR TERTIARY EDUCATION, SKILLS, JOBS AND WORKPLACE RELATIONS Second Respondent QANTAS AIRWAYS LIMITED Third Respondent QCATERING LIMITED Fourth Respondent THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION Fifth Respondent TRANSPORT WORKERS UNION OF AUSTRALIA Sixth Respondent MINISTER FOR FINANCE AND SERVICES IN HIS CAPACITY AS MINISTER RESPONSIBLE FOR WORKPLACE RELATIONS IN THE STATE OF NEW SOUTH WALES First Intervener MINISTER FOR EMPLOYMENT AND INDUSTRIAL RELATIONS IN THE STATE OF VICTORIA Second Intervener JUDGES: LANDER, BUCHANAN AND PERRAM JJ DATE: 10 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT BUCHANAN J: Over a period of some months leading up to October 2011, members of three federal unions took various forms of industrial action against Qantas in support of separate claims each had made for new enterprise agreements. The unions were the applicant (with whom negotiations commenced in August 2010), the fifth respondent (“ALAEA”) (with whom negotiations also commenced in August 2010) and the sixth respondent (“TWU”) (with whom negotiations commenced in May 2011). There were many meetings between Qantas and each of the unions, but agreement about the terms of an enterprise agreement was not reached with any of them. The industrial action escalated, particularly on the part of members of ALAEA and TWU. On the evening of Saturday 29 October 2011, Qantas announced that on 31 October 2011 it would lockout members of each of the unions as a response to the industrial action being taken against it, and to attempt to achieve abandonment of certain claims being pursued by each of the unions. At the same time, Qantas grounded its fleet of aircraft worldwide with immediate effect. The second respondent (“the Minister”) thereupon applied to the first respondent (“FWA”) for orders that would prevent Qantas’ proposed lockout from being “protected industrial action” under the Fair Work Act 2009 (Cth) (“the Act”) and equally deny the industrial action being taken by members of each of the unions “protected” status. The application invoked s 424 of the Act. Section 424(1) provides: 424(1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that: (a) is being engaged in; or (b) is threatened, impending or probable; if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten: (c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or (d) to cause significant damage to the Australian economy or an important part of it. A Full Bench of FWA heard the application on an urgent basis. Hearings took place from approximately 10.00 p.m. on the evening of 29 October 2011. The first hearing went into the early hours of the following morning. Proceedings recommenced at approximately 2.00 p.m. on Sunday, 30 October 2011. They continued throughout the day until just before midnight. FWA delivered its decision shortly after 2 a.m. on Monday, 31 October 2011. FWA found that the protected industrial action proposed by Qantas would cause significant damage to an important part of the Australian economy (s 424(1)(d)). Each form of protected industrial action, existing and proposed, in relation to the proposed enterprise agreements was terminated. The legal effect of the order was that certain immunities, to be identified shortly, became unavailable if industrial action continued or took place. The practical effect was that the existing industrial action by members of the three unions ceased and the lockout proposed by Qantas did not go ahead. As operational circumstances permitted, Qantas aircraft resumed flying. On 10 November 2011 the applicant commenced proceedings in this Court seeking orders in the form of writs of certiorari and mandamus to set aside the order made by FWA, so far as it concerned the protected industrial action being taken by its own members. I have come to the view that while FWA should not have made an order terminating the protected industrial action being taken by members of the applicant, the orders sought by the applicant in this Court should not be made. Before coming more directly to that aspect of the decision made by FWA, it is necessary to say something about the general nature of the attack made upon the approach taken by FWA. A central contention upon which the applicant relied in this Court was that FWA failed to give adequate consideration to whether the lockout proposed by Qantas was, or could reasonably be said to be, a response to any industrial action by members of the applicant, rather than a response to the damaging action by members of the two other unions. The applicant complained that FWA treated the three independent bargaining periods and sets of industrial action as part of a “single job lot”. The scheme of the Act is to permit, in a limited way, industrial action which may be taken in support of claims for an enterprise agreement. Industrial action is permitted in the sense that if the industrial action is “protected industrial action”, it is immunised from retaliation in at least two important ways. First, by s 415 of the Act, protected industrial action (by employees or employers) is, subject to certain stated exceptions, immune from suit – e.g. for damages or injunctive relief. Section 415 provides: 415(1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve: (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. 415(2) However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action. This provision gives a large measure of protection from common law action in the ordinary courts and from various forms of statutory action. Secondly, taking protected industrial action is a “workplace right” for the purpose of s 340 of the Act (see also s 341(1)(b) and (2)(c)). Hence, “adverse action” may not be taken in response to it. One important consequence is that an employee cannot be subjected to disciplinary repercussions for engaging in protected industrial action (see e.g. Item 1 in s 342(1) of the Act). Limitations on the right to take protected industrial action arise from a number of places in the Act. First, so far as employers are concerned, “industrial action” is defined in a way which limits what may become, under other provisions, protected industrial action. Section 19(1) and (3) provide: 19(1) Industrial action means action of any of the following kinds: (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; (c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; (d) the lockout of employees from their employment by the employer of the employees. ... 19(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts. One consequence is, for example, that dismissal of employees in response to a strike or other industrial action is not a “lockout”, and therefore is not “industrial action” and can never be “protected industrial action”. Other limitations arise from Division 2 of Chapter 3, Part 3 - 3 of the Act. Section 408 identifies what constitutes “protected industrial action”. It provides: Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following: (a) employee claim action for the agreement (see section 409) ; (b) employee response action for the agreement (see section 410) ; (c) employer response action for the agreement (see section 411). Under the arrangements thereafter stated by Division 2, only employees and their bargaining representatives (e.g. unions) may, unprovoked or unresponsively, organise or engage in industrial action for the purpose of supporting or advancing claims in relation to a proposed enterprise agreement (s 409). By contrast, industrial action by employers will only be protected industrial action if it is organised or engaged in as a response to employee industrial action (whether or not protected industrial action) (s 411). In each case, certain “common requirements” must be met. Those requirements are set out in s 413 of the Act. One requirement is that whoever takes the protected industrial action must be “genuinely trying to reach an agreement”. Section 413(3) provides: 413(3) The following persons must be genuinely trying to reach an agreement: (a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement – the bargaining representative; (b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement – the bargaining representative of the employee. Confusingly for those who have to grapple with the legislative scheme, an employer is treated as its own “bargaining representative” (s 176(1)(a)). Another requirement is that written notice must be given prior to the commencement of any employee or employer claim action (s 413(4) and s 414). A further requirement is that protected industrial action may not be taken before the nominal expiry date (s 186(5)) of an existing applicable enterprise agreement (s 413(6) and s 417). One issue which these limitations raise for consideration is whether an employer may take “employer response action” simply because industrial action has been taken by employees (such as, but not limited to, “employee claim action”) or whether an employer may only, in some direct sense, respond to such industrial action. Is the limitation merely temporal, or must some causal connection be present? In my view, the limitations in Division 2, and in s 411 in particular, limit an employer to some form of causally connected response to employee industrial action. However, it is not necessary for the employee industrial action to have been protected industrial action. Considering the legislative scheme in that way makes no practical difference to the matters which now arise for consideration in the present case, but it is an important element which underpins how the actions of Qantas, which were announced on 29 October 2011, must be assessed. In the present case, the applicant argued that Qantas’ decision to lockout its members was not made in response to industrial action taken by its members. However, it was accepted that the members of the applicant had taken, and were continuing to take, industrial action. That industrial action was protected industrial action. It was employee claim action being taken in relation to a proposed enterprise agreement. Qantas staunchly opposed those claims. There was no doubt that Qantas had the right to take protected industrial action in response. The contention was that it did not, in fact, do so. The principal argument for the applicant was that its members were simply swept up in Qantas’ response to the industrial action of the other two unions, which had seriously damaged Qantas. Thus, so the argument went, it was impossible to be satisfied that Qantas was responding to the relatively benign (and, by inference, responsible) conduct of members of the applicant. It was contended that FWA did not consider this circumstance and accordingly failed to satisfy itself, as required by the Act, that Qantas was proposing to take protected industrial action against members of the applicant, i.e. action which was in response to their own (not some other) industrial action. The difficulties for this thesis are many and considerable. First, there is no doubt at all that members of the applicant had taken, and were continuing to take, industrial action against Qantas. The applicant intended for this industrial action to be seriously regarded by Qantas and to place bargaining pressure on Qantas to concede to demands to which Qantas was staunchly opposed. In that sense alone, the industrial action by members of the applicant was not trifling. Secondly, the applicant had invoked the protections of the Act in relation to the industrial action of its members, thereby severely circumscribing the way in which Qantas could respond to it. Qantas’ only legitimate (i.e. protected) response was to “lockout” members of the applicant (using that term in its defined sense in s 19(3) of the Act). Thirdly, there was ample evidence that Qantas was proposing to respond directly to the industrial action by members of the applicant. The evidence took a number of forms. Before I refer to that evidence, it is important to appreciate that FWA is not bound by any technical rules of evidence (s 591) ; it may inform itself in relation to any matter before it as it thinks fit (s 590) ; it must perform its functions quickly, informally and without unnecessary technicalities (s 577) ; and, in the present case, was under strict time constraints (s 424(3)). In those circumstances, there is only limited scope for a debate about the evidence FWA might receive and take into account. In any event, there was no want of evidence before FWA to the effect that Qantas proposed to respond directly to the industrial action engaged in by members of the applicant: - First, Qantas gave the applicant and its members written notice that the proposed lockout of members of the applicant was in response to industrial action organised by the applicant. The nature of that industrial action, to which Qantas was proposing to respond, was identified. - Secondly, Mr Alan Joyce, CEO of Qantas, announced publicly that Qantas’ action was in response to the industrial action of the three unions, including the applicant, and would include members of the applicant. - Thirdly, as I have already said, the objective facts were that members of the applicant had been taking protected industrial action and the only legitimate response available to Qantas under the Act was to lock them out. - Fourthly, Mr Lyell Strambi, who signed the lockout notice, gave oral evidence in which, having identified the industrial action being taken by members of the applicant (as well as members of other unions), he said Qantas’ proposed action was in response to the industrial action taken by the unions. The applicant’s members cannot be treated as apart, or excluded from, that response. They were not, as a matter of fact, so excluded. Mr Strambi’s cross-examination confirmed that members of all three unions were to be locked out, a possibility which had received close attention and analysis over the preceding period. - Fifthly, Ms Sue Bussell (Executive Manager of Industrial Relations for Qantas) also gave oral evidence that Qantas’ proposed action was responsive to the industrial action of the unions. Again, the industrial action of members of the applicant cannot be treated as standing apart. Ms Bussell confirmed that before Mr Joyce made his decision, he was considering a lockout in the context of the industrial dispute with members of the applicant. In my view, this evidence left little room for an argument that the industrial action proposed by Qantas did not respond to the industrial action by members of the applicant, as well as members of the other unions. It is important to emphasise that the evaluation of that question was a matter committed by the Act to the judgment of FWA. Provided FWA did not misunderstand or fail to exercise the jurisdiction committed to it by the Act, judicial review would not be available with respect to an error of fact made by FWA, unless it was a jurisdictional fact. It was clear from its decision that FWA was conscious of the separate identity of the industrial action taken by members of each of the three unions as a foundation for any response by Qantas. FWA said (at [8]): [8] On Saturday 29 October 2011 Qantas gave notice of a lock out of pilots, ramp, baggage handling and catering employees and licensed aircraft engineers to be covered by the proposed enterprise agreements. The lock out will take effect from 8pm on Monday 31 October. On making the announcement of the lockout Qantas grounded its fleet worldwide. It has indicated that the lock out will continue until the three unions abandon a number of identified claims. Qantas contend that if it granted those claims the airline’s commercial viability would be seriously impaired or destroyed. Further, FWA observed (at [10]): [10] It is unlikely that the protected industrial action taken by the three unions, even taken together , is threatening to cause significant damage to the tourism and air transport industries. ... (Emphasis added) Finally, FWA said ( at [11]): [11] We find that the requirements of s.424(1) have been made out with respect to the action of which Qantas has given notice in relation to the three proposed enterprise agreements. ... Hence, it is apparent that FWA evaluated the requirements of s 424 of the Act against the separate notices given by Qantas, including the separate notice given to the applicant and its members of Qantas’ intention to lockout those members as a response to the industrial action organised by the applicant. There is, in the end, no argument available that FWA misunderstood its jurisdiction or failed to exercise it. There is no argument available, suitable for an application for judicial review, that FWA made an error in its evaluation of the facts. I do not think that evaluation of the question of whether Qantas was responding primarily to the industrial action taken by the other two unions, or whether members of the applicant were simply swept up indiscriminately in Qantas’ response, raised any question of jurisdictional fact. It appears to me to raise only a question of whether FWA might have made an error within its jurisdiction. The distinction is an important and very well established one so far as it concerns the work of federal industrial tribunals (see generally Coal and Allied Mining Services Pty Ltd v Lawler [2011] FCAFC 54 ; (2011) 192 FCR 78 (at [1]), [2] and [54]-[58]). Be that as it may, if this Court had occasion to evaluate a question of jurisdictional fact in a case such as the present, it would give particular weight to the evaluation made by FWA (see Attorney-General for the State of Queensland v Riordan [1997] HCA 32 ; (1997) 192 CLR 1 at 14-16, 23-24, and 38), although it would do so applying the ordinary rules of evidence (see R v Alley; Ex parte NSW Plumbers and Gas Fitters Employees’ Union [1981] HCA 61 ; (1981) 153 CLR 376 (per Gibbs CJ at 382, per Mason J at 389-90); R v Cohen; Ex parte The Attorney-General for the State of Queensland [1981] HCA 66 ; (1981) 157 CLR 331 at 338). The applicant would carry the onus of showing jurisdictional error. It would not have been discharged in the present case. However, it is not necessary to explore those questions in any more detail because there is no reason to suppose that FWA did not understand the nature of the jurisdiction to be exercised, or did not address itself to the questions for attention, or failed to adequately or correctly assess the evidence before it. In my view, therefore, there is no case for relief based on the proposition that the proposed lockout by Qantas of members of the applicant was not protected industrial action. There remains one further matter to be addressed. Section 424 empowers FWA to make an order terminating or suspending “protected industrial action” as identified in s 408. Necessarily, that imports a limitation which confines attention to the particular protected industrial action in question. That is because protected industrial action must satisfy s 409 , s 410 or s 411 , and also the common requirements in s 413. Those requirements include notice of the nature of the action and when the action will commence (s 414(6)). It follows, in my view, that separate consideration must be given to each of the protected industrial actions which is to be terminated or suspended – i.e. each which has been notified. That may not mean that each must be considered in isolation but that is a question for another day. Here, FWA did find that the industrial action proposed by Qantas satisfied the tests in s 424(1). However, FWA did not find that the protected industrial action being taken by members of the applicant satisfied the tests in s 424(1) , whether considered individually or in combination with the protected industrial action being taken by the members of the other unions (if that was possible). Hence, FWA should not have made an order terminating the protected industrial action being taken by members of the applicant. However, that does not mean that any order should be made by this Court. Under s 413(7) of the Act, one of the common requirements for industrial action to be protected industrial action is that there must not be in operation an order terminating or suspending industrial action in relation to the proposed enterprise agreement. It was common ground that an order terminating the protected industrial action proposed by Qantas had the effect that the industrial action earlier notified by the applicant ceased to be protected industrial action. Therefore, even though no order should have been made under s 424 with respect to the protected industrial action being taken by members of the applicant, the legal position would have been the same. In the circumstances, in my view, no relief is necessary, or should be granted. I would dismiss the application. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 10 May 2012 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1975 of 2011 BETWEEN: AUSTRALIAN AND INTERNATIONAL PILOTS ASSOCIATION Applicant AND: FAIR WORK AUSTRALIA First Respondent MINISTER FOR TERTIARY EDUCATION, SKILLS, JOBS AND WORKPLACE RELATIONS Second Respondent QANTAS AIRWAYS LIMITED Third Respondent QCATERING LIMITED Fourth Respondent THE AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION Fifth Respondent TRANSPORT WORKERS' UNION OF AUSTRALIA Sixth Respondent MINISTER RESPONSIBLE FOR WORKPLACE RELATIONS IN THE STATE OF NSW First Intervener MINISTER FOR EMPLOYMENT AND INDUSTRIAL RELATIONS FOR THE STATE OF VICTORIA Second Intervener JUDGES: LANDER, BUCHANAN & PERRAM JJ DATE: 10 MAY 2012 PLACE: SYDNEY REASONS FOR JUDGMENT PERRAM J: INTRODUCTION The applicant (‘AIPA’) is a federal union which represents the industrial interests of international or, as they are sometimes known, long haul pilots. There is currently an ongoing industrial dispute between AIPA and Qantas Airways Ltd (‘Qantas’). At the heart of that dispute is AIPA’s contention that long haul pilots working for Qantas’ subsidiary, Jetstar, should be paid the same as long haul pilots working for Qantas itself. The dispute has brought negotiations between AIPA and Qantas over a new proposed enterprise agreement to a stalemate. The pilots will not drop their demands and Qantas will not cede in the negotiations that which it sees as a management prerogative. On 18 July 2011 AIPA began a campaign of very limited industrial action. Its members began to wear red ties whilst on duty rather than Qantas’ regulation black ties. At the same time, they took to making announcements to passengers at the end of long haul flights highlighting, in constrained terms, their perceived grievance with Qantas. There were also very limited work interruptions, for example, by a single long haul pilot on 24 July 2011 stopping work for two periods of two minutes. As will be seen, this action, by itself, had little, if any, effect on Qantas beyond being an annoyance. The pilots’ actions were not, however, isolated. At the same time, Qantas was also in dispute with the unions representing its baggage handlers and licensed engineers. These disputes were much more heated than the one it was having with its pilots. There had been rolling strikes and stoppages, considerable inconvenience to the flying public and an impact on Qantas’ revenues which was not trivial. Again all of these disputes arose in the context of the parties seeking to negotiate enterprise agreements. On Saturday 29 October 2011, Qantas decided to lock out its pilots, baggage handlers and licensed engineers as and from 8.00 pm on Sunday 31 October 2011. As it was required to do, it gave formal notice of its intention to each of the unions. Simultaneously, it announced its intention immediately to ground its entire fleet. Its chief executive officer, Mr Joyce, gave a press conference at which he publicly announced what Qantas was doing and its stated reasons for taking this course. All of this occurred around 5.00 pm that Saturday. The sudden grounding of the national carrier on a Saturday night immediately generated widespread interest including at the highest levels of government. Later that evening, as he was entitled to do, the responsible Minister made urgent application to Fair Work Australia for an order that would prevent the lockout from taking place. The explicit ground was that the continuance of Qantas’ actions in locking out its staff would have a significant and adverse effect on the tourism and aviation industries. Under circumstances of the considerable urgency a hearing before Fair Work Australia commenced at 10.09 pm on that Saturday night. The matter was heard by a Full Bench comprising the President of Fair Work Australia (Guidice J), Senior Deputy President Watson and Commissioner Roe. Later in the evening the hearing was adjourned but resumed again on Sunday afternoon. The hearing continued for the balance of Sunday and the Full Bench eventually reserved its decision shortly before midnight. It reconvened at 2.02 am on Monday 31 October 2011 and delivered orally its reasons for its decision to order that all industrial action, whether by Qantas, AIPA, the baggage handlers or the licensed engineers, immediately cease. THE APPLICATION This case concerns AIPA’s challenge to the authority of Fair Work Australia to make the orders it did and to that issue I shall shortly turn. I have set out the rather extreme circumstances under which the hearing took place because they form an essential backdrop to any assessment of the criticisms which are made by AIPA of the Full Bench’s reasons. They are also relevant to assessing the criticisms which are made of the positions taken by AIPA’s representatives at the hearing before Fair Work Australia. The proceedings in this Court are brought only by AIPA; that is, the baggage handlers and the licensed engineers do not seek to challenge the Full Bench’s orders. The issues before this Court are straightforward. The first concerns the issue of ‘employer response action’. The power of Fair Work Australia to put a stop to Qantas’ lockout of its pilots depended, as will be seen, on a finding that the lockout was done in response to the pilots’ own industrial actions. In a variety of different ways AIPA submits that Qantas’ actions in locking its members out could not have been in response to their wearing of red ties and the making of announcements. The second issue is a purely legal one. The Full Bench concluded that whilst it was satisfied that Qantas’ actions in grounding its fleet would harm the tourism and transport industries, it was not satisfied that the industrial action of the three unions was having that effect. AIPA submitted that in light of those findings the Full Bench only had authority to order a cessation of Qantas’ actions and not, as it had done, a cessation of its members’ action in wearing red ties and making announcements. The third issue concerns the nature of the relief, if any, which should be granted. Before turning to those three issues, it is necessary to say something of the statutory régime. THE STATUTORY RÉGIME Critical to this case is the concept of ‘protected industrial action’. When engaged in, ‘protected industrial action’ has no civil consequences. Protected industrial action may be engaged in both by employees and employers. In each case, the action will only be protected if it is engaged in for the purposes of negotiating an enterprise agreement. Whilst employees may both initiate and respond to protected industrial action, employers are limited to responsive action and this, too, is limited to a lockout. Fair Work Australia is empowered to stop protected industrial action if, inter alia, it is a threat to the economy. The relevant provisions which establish these and other relevant propositions are contained in ss 19 , 408 , 409 , 411 , 415 and 424 of the Fair Work Act 2009 (Cth) (‘the Act) which are, in part, as follows: 19 Meaning of industrial action (1) Industrial action means action of any of the following kinds: (a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work; (b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee; (c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work; (d) the lockout of employees from their employment by the employer of the employees. ... (3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts. ... 408 Protected industrial action Industrial action is protected industrial action for a proposed enterprise agreement if it is one of the following: (a) employee claim action for the agreement (see section 409) ; (b) employee response action for the agreement (see section 410) ; (c) employer response action for the agreement (see section 411). ... 409 Employee claim action Employee claim action (1) Employee claim action for a proposed enterprise agreement is industrial action that: (a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and (b) is organised or engaged in, against an employer that will be covered by the agreement, by: (i) a bargaining representative of an employee who will be covered by the agreement; or (ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and (c) meets the common requirements set out in Subdivision B; and (d) meets the additional requirements set out in this section. ... 411 Employer response action Employer response action for a proposed enterprise agreement means industrial action that: (a) is organised or engaged in as a response to industrial action by: (i) a bargaining representative of an employee who will be covered by the agreement; or (ii) an employee who will be covered by the agreement; and (b) is organised or engaged in by an employer that will be covered by the agreement against one or more employees that will be covered by the agreement; and (c) meets the common requirements set out in Subdivision B. ... 415 Immunity provision (1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve: (a) personal injury; or (b) wilful or reckless destruction of, or damage to, property; or (c) the unlawful taking, keeping or use of property. (2) However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action. ... 424 FWA must suspend or terminate protected industrial action—endangering life etc. Suspension or termination of protected industrial action (1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that: (a) is being engaged in; or (b) is threatened, impending or probable; if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten: (c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or (d) to cause significant damage to the Australian economy or an important part of it. (2) FWA may make the order: (a) on its own initiative; or (b) on application by any of the following: (i) a bargaining representative for the agreement; (ii) the Minister; (iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L —the Minister of the State who has responsibility for workplace relations matters in the State; (iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory; (iii) a person prescribed by the regulations. Application must be determined within 5 days (3) If an application for an order under this section is made, FWA must, as far as practicable, determine the application within 5 days after it is made. Interim orders (4) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined. (5) An interim order continues in operation until the application is determined. I turn then to the first set of issues. THE EMPLOYER RESPONSE ACTION ISSUES (a) Whether the presence of ‘response action’ is a jurisdictional fact The text of s 424 is set out above. It does not, in terms, say that the power of Fair Work Australia to make a termination order is contingent upon it first forming an opinion, or being satisfied, that what is taking place is ‘protected industrial action’. This omission formed the springboard for AIPA’s submission, developed during oral argument, that the power in s 424 was dependent for its existence upon the fact that there was ‘protected industrial action’. Since this Court had power to grant relief where an excess of jurisdiction was shown, it followed that this Court was not only entitled but also obliged to consider whether that jurisdictional fact had been established. Viewed this way, Fair Work Australia’s opinion as to whether there was protected industrial action was largely irrelevant. Instead, it was for this Court to form its own opinion on the matter based on the evidence before it. The principles in this area are well-established. In Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297 , the High Court unanimously adopted at 303 the dissenting analysis of Black CJ on this issue in the Full Court below. That judgment, which is reported as Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 , establishes four propositions which are presently relevant: first , whether a statutory power is to be read as subject to the formation of an opinion about the existence of a matter by the decision maker or, instead, by the bare existence of the matter itself is a question of statutory construction (at 466); secondly , the resolution of that question is assisted by an examination of the nature of the task reposed in the decision maker—where that task is a difficult and complicated one involving the careful assessment of complex facts and the formation of opinions and value judgments on a potentially wide range of matters, this will suggest that Parliament intended that the decision maker would have power to make its own determination of that matter (at 466); thirdly , the inconvenience which may attend the conclusion that a matter is a jurisdictional fact is itself an indicator that this is unlikely to have been what Parliament intended (at 466); and, finally , the specialist qualifications of the members of an administrative tribunal may well be an indicator that it is this body, with its expertise, that is to resolve the issue at hand (at 467). The High Court’s reasoning in Plaintiff M70/2011 v Minister for Immigration & Citizenship (2011) 280 ALR 18 ; [2011] HCA 32 at [57] - [58] per French CJ, [107]-[109] per Gummow, Hayne, Crennan and Bell JJ and [164] per Heydon J is consistent with this distillation, although the result in that case may show that its application is not always easy or without controversy. Each of these factors points to the conclusion that s 424(1) should be construed as requiring as a condition precedent to the power arising, the satisfaction of Fair Work Australia that there was protected industrial action rather than the existence of protected industrial action as a matter of jurisdictional fact. The concept of protected industrial action takes one to s 408. Each of the three species of protected industrial action there set out contain statutory requirements involving complicated matters of factual assessment. For example, protected industrial action includes ‘employee claim action’ which, in s 409(1) , is defined to be industrial action which ‘is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about , permitted matters’ (emphasis added). Further, the definitions of employee claim action, employee response action and employer response action are accompanied by a requirement that each ‘meets the common requirements set out in Subdivision B’: ss 409(1)(c) , 410 (1)(c) and 411 (1)(c). Subdivision B is headed ‘Common requirements for industrial action to be protected industrial action’ and includes a requirement that the parties be ‘genuinely trying to reach an agreement’ (s 413(3)). Again this is a matter of a complicated and evaluative kind. Then there is the consideration that if s 424(1) makes the existence of protected industrial action a jurisdictional fact great inconvenience is likely to ensue. Section 424(1) is a power which must almost always be exercised urgently (as it was in this case). Section 424(3) requires Fair Work Australia to resolve any application within five days. If it is unable to do so it must make an interim suspension order: s 424(4). This is hardly surprising since the inquiry erected by s 424(1)(d) directs attention to whether the protected industrial action is harming the national economy. It would strike at the heart of the urgency contemplated by these provisions if all of Fair Work Australia’s deliberations were made contingent upon this Court’s subsequent, and potentially unexpedited, views on whether there had been protected industrial action in the first place. This conclusion is further reinforced by the fact that Fair Work Australia is authorised to move on its own motion: s 424(2)(a). It is significant too that the membership of Fair Work Australia is a specialised one as in the Australian Heritage Commission case. By s 627(1) -(3) each of the President, the Deputy Presidents and the Commissioners of Fair Work Australia must have experience in one or more of the fields of workplace relations, law or business, industry or commerce. Further, Fair Work Australia and its predecessors have been administering the industrial arrangements of this nation for more than a century. Parliament may be presumed to be aware of its substantial experience and expertise in industrial matters. It is likely that in conferring the powers in s 424 (linked as they are to the most serious issues of industrial and economic policy) Parliament had in mind precisely the utilisation of Fair Work Australia’s expertise. In those circumstances, s 424(1) is to be construed as being enlivened when Fair Work Australia forms the opinion that there is protected industrial action; the matter is not therefore a matter for judgment by this Court. That is not to say that review of Fair Work Australia’s state of satisfaction is not available. To the contrary, the principles governing review of such matters are well established. Section 424(1) will be treated as referring to an opinion or satisfaction which is ‘such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts’ ( R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42 ; (1944) 69 CLR 407 at 430 per Latham CJ). Consequently, if the opinion or satisfaction is formed taking into account irrelevant considerations or as a result of misconstruing the relevant legislation, then it will be ultra vires s 424(1): Connell at 432; Minister for Immigration v Eshetu (1999) 197 CLR 611 at 651-654 [131]-[137] per Gummow J. What is important for present purposes is that review of that kind does not permit the reviewing court to substitute its own opinions on the matter. (b) Was Qantas’ action ‘response action’? Even if I was of the view that s 424(1) did stipulate the existence of a jurisdictional fact which made the Court’s opinion relevant, I would still, however, be satisfied that Qantas’ action was response action. To see why this must be so it is necessary to begin with s 424(1) which operates principally by reference to ‘protected industrial action’. That expression is defined in s 408 which, it will be noted, contemplates that the industrial action in question will be ‘for a proposed enterprise agreement’. ‘Enterprise agreements’ are dealt with by Part 2 - 4 . They are, in effect, collective industrial agreements between employers and employees: s 172. Once agreed, they must be approved by Fair Work Australia, provided certain requirements are met. This is provided for in Division 4 of Part 2 - 4 . Importantly, in an ordinary case there is no legal mechanism by which a party’s consent to an enterprise agreement may be secured. There is no system, for example, of compulsory arbitration. To that may be admitted two exceptions. The first , of little significance, is the ability of the parties, should they consent, to refer the matter to arbitration by Fair Work Australia: s 240(3). Where the proposed enterprise agreement is a single-enterprise agreement or a multi-enterprise agreement in relation to which a low-paid authorisation is in operation, non-consensual operation may also occur (s 240(2)) but this provision is presently of no moment. The second , with which this case is concerned, arises from the ability of Fair Work Australia and, in some circumstances, the Minister to order a cessation of ‘protected industrial action’ under Part 3 - 3 when there is a significant threat to the national economy or to life and limb. If such an order is made then the effect of s 266 is to require Fair Work Australia to arbitrate the competing industrial claims of the parties following the cessation of the protected industrial action. The inability in ordinary circumstances, therefore, of either party to compel the other to agree to an enterprise agreement means that the suasions available to the parties are limited, in effect, to what they can do to each other. Those activities fall into two categories. The first , which might fairly be described as Hobbsian, consists of straightforward industrial action of any variety. This action, if it is not connected to the negotiation of an enterprise agreement, will be unlawful, at least in the sense of constituting a breach of contract. If such activity is engaged in Fair Work Australia has the power to order that it stop: s 418(1). Furthermore, this Court thereafter has the power to order that Fair Work Australia’s order be enforced: s 421(3). The second category of actions consists of those set out in s 408 above, that is, that subset of all industrial action consisting of ‘protected industrial action’. If the industrial action is protected, then the immunity conferred by s 415 arises. The third kind of protected industrial action specified in s 408(c) is ‘employer response action’. This is defined in s 411 which must, however, be read with the definition of ‘industrial action’ contained in s 19. From ss 19(1) and 19 (3) it will be seen that the only species of employer action which is covered by s 19(1) is a lockout. The scheme of Part 3 - 3 Division 2 is, therefore, one in which the only bargaining tool available to an employer is a responsive lockout. The terms of s 411(a) make clear that, for industrial action to be employer response action, it must be ‘organised or engaged in as a response to industrial action’ by an employee or a bargaining agent of an employee (which includes a union). The words ‘as a response’ require only that the lockout be seen as causally connected to employees’ industrial action. It does not have to be reasonable, proportionate or rational. AIPA submitted that the evidence before this Court could not justify a finding that Qantas had engaged in response action. There is, it may be accepted, rhetorical force in the proposition that the lockout of the pilots could not sensibly be seen to have been done in response to their industrial action in wearing red ties and making announcements at the end of long haul flights. That action had no effect whatever on flight timetables. On the other hand, the industrial action being pursued by the baggage handlers and maintenance crews was having an obvious and direct effect on Qantas’ capacity to carry its passengers in a timely and reliable fashion. Viewed from that perspective, it is not difficult to see the origin of AIPA’s argument that the lockout was, in truth, a response to the action of the baggage handlers and maintenance crews and was unrelated to their actions in wearing red ties and making announcements. Despite the superficial attraction of the argument it should nevertheless be rejected. The principal reason for this is the one set out above, that is, the fact that the response required by s 411 does not have to be reasonable, proportionate or rational. Indeed, it would be a response under s 411 even if Qantas’ motives were shown to be, as in the case of the pilots they probably were, opportunistic. Further, s 411 neither requires that the response action be taken solely in response to the industrial action of the party with whom the proposed enterprise agreement may be made nor that it be predominantly or even substantially in response to the employee claim action. All that is required is that it is a response. The threshold is low. There was evidence before this Court that Qantas’ actions in locking the pilots out was responsive. Most directly this evidence consisted of Qantas’ press release by which the grounding of its fleet was announced and by the terms of the lockout notice issued by Qantas to AIPA. As to the former, this was issued by Mr Joyce late on the afternoon of Saturday 29 October 2011. Mr Joyce noted, inter alia, that the pilots had been making ‘impossible demands’ and that all three unions had been ‘running utterly destructive industrial campaigns’. He painted the results as ‘unsustainable’ and listed them as follows: • 70,000 affected passengers • Over 600 flights cancelled • 7 grounded aircraft • Nearly $70 million damage • And $15 million in damage for every week that goes by. Mr Joyce thought that the ‘unions’ industrial campaigns are designed to scare away customers’; moreover that ‘the pilots union has also said they are considering escalating their industrial campaign’. Following a catalogue of further travails that might befall Qantas if something was not at once done, Mr Joyce then said: I am using the only effective action at my disposal to bring about peace and certainty. In response to the unions’ industrial action, I announce that under the provisions of the Fair Work Act Qantas will lock out all those employees who will be covered by the agreements currently being negotiated with the ALAEA, the TWU and AIPA. I have informed the Government of this. As has been mentioned, the lockout notice for the pilots was issued on 29 October 2011 (notices were also issued to the baggage handlers and licensed engineers). It recited, using the language of the Act, that there was to be a lockout of the pilots and that: The lockout is organised and engaged in as a response to the following industrial action by employees organised by AIPA: ongoing ban relating to compliance with the Qantas uniform policy and substitution with an AIPA approved uniform policy; and ongoing ban relating to compliance with Qantas cabin announcement policy and substitution with an AIPA approved announcement. In the hurried proceedings before Fair Work Australia and in those before us, Mr Joyce was not called. It follows that his claims in the press release and those in the lockout notice have never been directly tested (the author of the lockout notice, Mr Strambi, was cross-examined but, as I discuss below, he was clear that the actual decision had been made by Mr Joyce alone). There may be much to be said for the view that both documents are, at least to a degree, self-serving. I do not accept that, if there been no industrial action by the baggage handlers or the licensed engineers, Qantas would have locked out its pilots merely because of they were wearing red ties and making announcements. Perhaps unsurprisingly it was not sought by those resisting AIPA to prove that the wearing of red ties by the pilots might have brought Qantas undone but some limited effort was made to prove the deleterious effects of the cabin announcements. This was initially hampered when it turned out that the text of the announcements had not been placed in evidence before Fair Work Australia. This was rectified before us when the text was admitted (but only on the jurisdictional fact issue). There appear to have been four announcements. The following is typical of all four: INTERNATIONAL INBOUND TO AUSTRALIA Ladies and gentlemen, this is (rank and name) speaking, on behalf of (rank and names of other crew), thank you for choosing Qantas today. Our great Australian airline was founded in the Australian outback in 1920; for over 90 years, Qantas pilots have been bringing Australians home, and welcoming visitors to our shores, while always putting the safety of our passengers above all else. We are proud of the world-famous safety reputation we have built, and we want to continue to provide you and your family with a standard of safety that you know you can trust. Qantas pilots dedicate our careers to looking after Qantas passengers. We’re doing everything possible to avoid carrying out any work stoppages, which is why we’re currently making these announcements. We hope you will support our campaign to keep Qantas pilots flying Qantas aeroplanes. To learn more please visit our website: www.qantaspilots.com Thank you It is difficult to imagine that this was regarded by Qantas as presenting a genuine threat to it in the on-going negotiations over the enterprise agreement even allowing for heightened industrial sensitivity on its part. Further, the other material upon which Qantas relied to show the menace of the pilots’ actions was unpersuasive. It was true that there was evidence that customers were affected by and concerned about the ‘industrial action’ but the evidence was that the customers did not disaggregate the roles of the three unions in that industrial action. I do not accept that it is plausible that customers were concerned by the pilots’ actions. AIPA pointed to a number of other matters which it submitted supported the conclusion that the lockout could not have been response action. The principal one concerned the failure of Qantas to call Mr Joyce to give evidence. This mattered because of the evidence of the three witnesses who were called by Qantas: Mr Strambi (Group Executive, Qantas Airline Operations), Ms Hudson (Executive Manager, Commercial Planning) and Ms Bussell (Executive Manager, Industrial Relations). The effect of their evidence was that the actual decision to lock out the pilots, baggage handlers and licensed engineers had been Mr Joyce’s. Mr Strambi had decided to ground the fleet in advance (on the basis of a risk assessment of how staff might react to a foreshadowed lockout) but, as I understood it, that was, in effect, a collateral safety decision. Each of the three witnesses gave evidence that they were not aware of the decision to stage the lockout until Saturday 29 October 2011. That evidence, however, has to be seen in a context which includes the fact that the possibility that a lockout might occur was being actively canvassed within the company in the lead-up to 29 October 2011. Indeed, Mr Strambi’s decision to ground the fleet flowed in part from a written risk assessment dated 18 October 2011 of what might flow from a lockout. It is true, therefore, as AIPA submits, that the actual decision was made by Mr Joyce and that his motives are not directly known. This does not, however, prevent inferences being drawn about the matter. AIPA submitted that the inference should be drawn that Mr Joyce was not responding to the pilots’ actions when he ordered the lockout because: Mr Joyce’s press release did not suggest that he was; the pilots’ industrial action consisted only of wearing ties and making announcements; it would be extreme to lock the pilots out for such trivial conduct; the announcements contained no threat to Qantas; and there was no evidence that the announcements were having any effect on bookings. I do not accept (a): there are parts of the press release that link the lockout to AIPA’s actions although I am inclined to treat those as tending to be self-serving. On the other hand, I accept each of the matters (b) to (e). What I would infer from this material is that Qantas’ actions were very likely opportunistic. It does not follow, however, that they were not responsive: an opportunistic response is a response none the less. I would accept that, so far as the pilots were concerned, by far the most aggravating aspect of their position was their demand that Jetstar pilots on Qantas codeshare flights be paid the same salaries as Qantas pilots. This, from Qantas’ perspective, was an in-road into its management prerogatives and, it may be reasonably surmised, was one of considerably more concern to it than the pilots’ actions in wearing red ties and making essentially innocuous remarks to its passengers. So too, it would be altogether unrealistic to think that Qantas’ concerns about the pilots’ industrial action approached the seriousness of its concerns about what was being done to it by the baggage handlers and licensed engineers. The most likely inference, and the inference I draw, is that the lockout of the pilots was done principally in response to the demands being made by the pilots as part of a wider strategy to bring to a head, once and for all, all of its disputes with the three unions. But it does not follow that Qantas did not wish also to end the relatively innocuous industrial action of the pilots. Why would it not take the opportunity, all other things being equal, to put an end to that nuisance whilst bringing the balance of the industrial disputes to the moment of their crisis? AIPA’s argument depended for its success on the assumption – ultimately unsound in my view – that Qantas’ actions could not be a response to both. It was by that mechanism that it argued that proof of one disproved the other. But the two sets of considerations were not mutually exclusive. They could be mutually exclusive only if there were a requirement that response action had to be reasonable or non-opportunistic but there is no such requirement. In that circumstance, I am not minded to draw any inference that Qantas was not responding to the AIPA industrial action in issuing the lockout notice. I draw the opposite conclusion. It is not necessary to consider, therefore, the further submission that one might more comfortably draw that inference in circumstances where Mr Joyce was not called to give evidence. Had the existence of responsive action by Qantas been a jurisdictional fact I would, therefore, have found that fact proven. I turn then to the next of AIPA’s attacks on Fair Work Australia’s conclusion on the issue of response action. (c) Did Fair Work Australia consider and determine whether Qantas’ actions were ‘response action’? AIPA submitted that the power of Fair Work Australia to terminate protected industrial action was dependent upon an anterior determination by it that Qantas’ actions in locking out AIPA’s members was itself employer response action. Since s 408 defines protected industrial action to include employer response action this submission should be accepted. Employer response action is defined in s 411. AIPA further submitted that Fair Work Australia was obliged to consider whether s 411 had been satisfied and that nothing in its reasons indicated that such a consideration had been undertaken. The result, so the argument ran, was that there had been a failure to give proper consideration which, in turn, constituted a jurisdictional error. The respondents, on the other hand, submitted that it was clear that Fair Work Australia had considered the issue of whether Qantas’ actions were employer response actions. Particular reference was made to [10] in the reasons of the Full Bench: [10] It is unlikely that the protected industrial action taken by the three unions, even taken together, is threatening to cause significant damage to the tourism and air transport industries. The response industrial action of which Qantas has given notice, if taken, threatens to cause significant damage to the tourism and air transport industries and indirectly to industry generally because of the effect on consumers of air passenger and cargo services. The Qantas evidence was that the cost to it alone is $20 million per day. The second sentence showed, so it was put, that the Full Bench was cognisant of the need for it to have characterised Qantas’ actions as employer response actions. Further, other parts of its reasons plainly showed that it had considered Qantas’ actions in locking out its employees was protected industrial action – a conclusion at which it was impossible to arrive without a prior determination that its actions were employer response actions. For example, at [13] and [15] the Full Bench said: [13] On the evidence there is significant uncertainty arising from the protected action initially of the unions but in particular arising from the lockout and the grounding of the airline. We should do what we can to avoid significant damage to the tourism industry. ... [15] In this case the primary consideration, however, as required by s.424(1) , is the effect of the protected action on the wider aviation and tourism industries. We have decided that in the particular circumstances of this case, which on the evidence include the particular vulnerability of the tourism industry to uncertainty, suspension will not provide sufficient protection against the risk of significant damage to the tourism industry and aviation in particular. Suspension is necessarily temporary - it leaves open the possibility there may be a further lock out with its attendant risks for the relevant part of the economy. That is, a risk the situation we are now dealing with will recur. The respondents submitted that these references were by themselves sufficient to show that Fair Work Australia had considered whether Qantas’ lockout was protected employer action but, so they submitted, a further matter underscored the correctness of that conclusion. The level of detail in Fair Work Australia’s consideration of the issue had to be seen in a context which included the fact that before it no party, and in particular not AIPA, had contended that Qantas’ action was not employer response action. It was hardly surprising that Fair Work Australia gave little attention to a matter that was not seriously in contest before it. Furthermore, the hearing before Fair Work Australia was conducted, so it was submitted, under considerable time pressure—its reasons being delivered at 2.02 am on the morning of Monday 31 October 2011, following a hearing conducted entirely over the weekend. Allied to that submission was the well-known proposition that the reasons of administrative tribunals are not to be approached with an eye keenly attuned to the ‘perception of error’: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272 and 291. The submissions of the respondents are to be preferred. The passages quoted above amply demonstrate that the Full Bench was aware of the need for it to be satisfied that Qantas had engaged in protected industrial action. It is apparent that the debate before Fair Work Australia largely proceeded on the assumption that Qantas’ actions in locking out the pilots was protected industrial action. Although AIPA advanced a submission highlighting the undoubted curiosity of Qantas’ engaging in the lockout as a response to the pilots’ action and thereafter seeking to persuade Fair Work Australia to terminate its own actions, nevertheless it was not squarely put that the lockout was not protected industrial action. That being so, it is hardly surprising that Fair Work Australia devoted little attention to the matter. Whilst no doubt it is true that an obligation lies upon an administrative decision-maker to give proper consideration to an issue before it, what is proper is affected by the context. Here that context is decisive. In the present circumstances, I am satisfied that Fair Work Australia gave proper consideration to this issue. (d) Did Fair Work Australia fail to consider each lockout separately? AIPA submitted that Fair Work Australia’s consideration of whether the lockout was employer response action had been marred because it did not consider the position of each lockout separately. I do not accept this submission. The reasons of Fair Work Australia reveal that it was quite aware not only of the need for it to identify Qantas’ actions as employer response action, not only of the fact that there were three separate lockouts (one for each set of employees) but, more significantly, of the very limited nature of the pilots’ industrial action. As a matter of fact, I am simply unpersuaded that Fair Work Australia overlooked the fact that it had to be satisfied in the case of each lockout. The truncated nature of the issue’s treatment is merely reflective of the significance that AIPA had itself assigned to the issue before Fair Work Australia and the considerable temporal exigencies attending the hearing. In any event, there was nothing wrong with Fair Work Australia considering whether Qantas’ actions were responsive to the pilots’ action in the undoubted context which existed, namely, industrial action by all three unions. I turn then to the second issue of whether Fair Work Australia could order a stop of the pilots’ actions. DID FAIR WORK AUSTRALIA HAVE POWER TO ORDER THE CESSATION OF AIPA’S ACTION? AIPA submitted that the only action that Fair Work Australia could order stopped was the protected industrial action which it had found to threaten the national economy or an important part of it. In this case what was found to threaten the tourism and air transport industries was the grounding of the Qantas fleet. AIPA submitted that its industrial action was explicitly found not to have threatened the tourism and air transport industries and hence no power arose to order an end to its protected industrial action. Fair Work Australia’s conclusion on this matter was set out at [10], which I have reproduced above. The Federal Minister submitted that the first sentence of that paragraph did not involve a finding that AIPA’s protected industrial action was not affecting the tourism or air transport industries and this was because it was not to be seen in isolation. I reject this submission. Fair Work Australia was directly contrasting the damage caused by the actions of the three unions with the damage caused by those of Qantas and it was saying that the unions’ action did not satisfy the preconditions for the enlivenment of s 424. The respondents then submitted that s 424(1), once enlivened, permitted an order to be made stopping not only the protected industrial action which was harming the national economy (or important parts of it) but also any other protected industrial action to which it was a response. I reject this submission too. It is clear that the ‘protected industrial action’ which is referred to in the first part of s 424(1) is the same as that which is referred to in the second part. The only protected industrial action which Fair Work Australia may order be stopped is that which meets the requirements of subsections (c) or (d). The consequence of that conclusion is that Fair Work Australia had no power to order AIPA to stop its protected industrial action under s 424. On the findings it had made, such an order was beyond its jurisdiction. Finally, AIPA argued that Fair Work Australia had erred in ordering a complete stoppage of industrial action rather than a suspension. The basis for this was an argument that Fair Work Australia had failed to take into account the fact that AIPA’s actions were unlikely to engender future action by Qantas. This argument cannot succeed. That matter was not made mandatory under s 424(1), nor is there anything in the subject matter, scope or purpose of the Act which indicates that the discretion conferred by s 424 requires, as a mandatory matter, that such a consideration be examined: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 per Mason J. RELIEF Ordinarily it would follow from my conclusions that certiorari will lie to quash the order together with mandamus to compel the performance of the duty imposed by s 424. In this case, however, account must be taken of the definition of ‘employee claim action’ in s 409(1). AIPA’s industrial action will only be protected industrial action if it complies with that provision. One of its requirements (s 409(1)(c)) is that the action ‘meets the common requirements set out in Subdivision B’. One of those requirements appears in s 413(7)(a) and is that there is not in operation ‘an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement’. The difficulty for AIPA is that, if Fair Work Australia had merely limited itself to making an order that Qantas desist from the three lockouts (and making no order about the employees’ own protected industrial action) then this would unquestionably have been ‘an order under Division 6’ in relation to the proposed AIPA collective agreement within the meaning of s 413(7)(a). Consequently, AIPA’s actions would have ceased to have been protected industrial action at all. At that point the immunity conferred by s 415(1) would have been lifted, which is precisely the situation which presently obtains. The only other effect of the order made by Fair Work Australia was the immediate consignment of the dispute to compulsory arbitration under s 266(1). The textual operation of s 266 is such that even if the order had been limited in its operation to Qantas the compulsory arbitration requirement would nevertheless have been triggered. It suffices for the purposes of s 266(2) that there be an order under s 424 ‘terminating protected industrial action for the agreement’. An order made solely against Qantas would have had that quality. Setting aside Fair Work Australia’s order and remanding the proceedings to Fair Work Australia by way of mandamus to be dealt with according to law could only result, therefore, in an order whose legal consequences would be identical to the order which was in fact made. In that regard, orders made under s 424 are to be contrasted with the stop orders contemplated in ss 418, 419 and 420 disobedience to each of which immediately engenders in the party against whom it is made a liability to a civil penalty or injunction under s 421. Section 424 does not have that effect. Its only two consequences are the transformation of the protected industrial action theretofore taking place into unprotected industrial action and the consignment of all of the disputes about the proposed enterprise agreement to compulsory arbitration. That, of course, is precisely the present legal landscape. In those circumstances, although the order made was in excess of jurisdiction there would be no utility in setting it aside. AIPA’s case in this Court was that Fair Work Australia had no power to make the order which it made and as to that Lander, Buchanan JJ and myself are in agreement. Although practical reasons conspire against AIPA’s claims for relief yet its essential contention has been vindicated. If this Court were to make no order with respect to its conclusions that would leave that controversy unresolved by any res judicata. In those circumstances, the appropriate course is to grant AIPA a declaration in lieu of certiorari that the order made by Fair Work Australia was not authorised by s 424 insofar as it applied to AIPA. It was suggested in this Court that relief should be declined because AIPA had not taken the jurisdictional point before Fair Work Australia. Given the exigencies of the hearing, this is not a sufficient reason to decline declaratory relief in this Court. Different considerations may well have applied in the case of certiorari and mandamus, however, this issue does not need to be resolved. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 10 May 2012