[2012] FWAFB 7791 [2012] FWAFB 7791 Download Word Document FAIR WORK AUSTRALIA REASONS FOR DECISION Fair Work Act 2009 s.604—Appeal of decision Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd (C2012/4411) JUSTICE BOULTON, SENIOR DEPUTY PRESIDENT SENIOR DEPUTY PRESIDENT HAMBERGER COMMISSIONER CARGILL SYDNEY, 12 SEPTEMBER 2012 Appeal - Fair Work Act s.604 - permission to appeal - no public interest. [1] This is an application by the Australian Licenced Aircraft Engineers Association (ALAEA) for permission to appeal, and if permission is granted, an appeal under s.604 of the Fair Work Act 2009 (the Act) from the decision of Vice President Watson to make an order pursuant to s.418 of the Act. The order 1 was made on 14 June 2012 and requires members of the ALAEA who are employees of Qantas Airways Ltd (Qantas) to cease unprotected industrial action. The order expires on 14 September 2012. [2] The background to the matter can be briefly stated as follows: The ALAEA represents Licenced Aircraft Maintenance Engineers (LAMEs) who are employed by Qantas. These employees are covered by the Licenced Aircraft Engineers (Qantas Airways Limited) Workplace Determination 2012 2 (the Workplace Determination), which has a nominal expiry date of 31 December 2014. On 16 February 2012, Mr G Harris (Head of Line Maintenance Operations, Qantas Engineering) sent out an email to all Qantas line maintenance staff announcing Qantas’ intention to introduce a “Maintenance on Demand” (MoD) policy for pre-flight checks. The MoD policy was to come into effect on 13 June 2012 in each Australian time zone. In essence the policy removed some routine checks that had previously been carried out by LAMEs prior to every flight and required pilots to undertake the checks. On 12 June 2012 the Appellant sent out a notice to its members employed by Qantas. Citing concerns relating to safety and industrial issues, the notice recommended that “Qantas LAMEs should continue to carry out and certify for pre-flight safety checks on all transits at all locations where they were carried out prior to 13 June 2012”. Employees of Qantas who are members of the ALAEA acted in accordance with this Notice. This was the industrial action which the Vice President ordered be stopped. [3] When the matter came on for hearing before the Full Bench on 10 September 2012, the ALAEA was represented by Mr L Amos (Assistant Industrial Officer), and Qantas was represented by Mr F Parry SC and Mr S Meehan. At the outset of the proceedings, we requested the parties to address the issue of permission to appeal. [4] Having heard the submissions and being taken to relevant parts of the outlines of the submissions which had been filed, we decided not to grant permission to appeal. These are the reasons for our decision. [5] An appeal under s.604 of the Act may only be pursued with the permission of Fair Work Australia (FWA). This would normally require an appellant to demonstrate an arguable case of appealable error and refer to other considerations which would justify the granting of permission to appeal. Subsection 604(2) requires FWA to grant permission to appeal if it is satisfied that it is in the public interest to do so. [6] The public interest and other grounds relied upon by the ALAEA are set out in its Notice of Appeal and were explained in the submissions made by Mr Amos. In brief terms, the grounds related to: the clarification of the application of the definition of “industrial action” in the Act; the recovery of moneys deducted from the wages of ALAEA members as a result of the action taken; the question as to whether the directions given by Qantas for LAMEs not to perform the checks were lawful and reasonable directions; the potential for the change to affect the safety of airline operations; and the operation of the dispute resolution procedure in the Workplace Determination. [7] In the circumstances of this matter, we are not satisfied that it is in the public interest or otherwise appropriate to grant permission to appeal. There are 5 main reasons for reaching this conclusion. [8] First, the order made by the Vice President expires on 14 September 2012. We were advised that the ALAEA and its members have complied with the order and that no legal proceedings have been instituted in relation to any breach thereof. We see little utility in proceeding with the appeal in these circumstances. This is particularly so as the appeal proceedings might be protracted and it would be unlikely that the proceedings would be completed and a decision given before the expiry of the order. This is because the ALAEA has sought to lead new and additional evidence and Qantas has foreshadowed the need, if such evidence is admitted, for cross-examination and for the leading of rebuttal evidence. [9] Secondly, the ALAEA has sought in the appeal to raise issues which were not advanced in its submissions before the Vice President. These relate to whether the directions given to Qantas employees to cease carrying out the inspections were lawful and reasonable directions. There was limited evidence in the proceedings before the Vice President as to the lawfulness of the directions or as to the consultation process and meetings held about the changes associated with MoD and the relevance of the Qantas Engineering Procedures Manual to such changes. The consideration of these issues in the appeal, if such a course was allowed, would both prolong the proceedings and extend their scope beyond that of the order made by the Vice President. This would have the effect of changing the nature of the proceedings and of the issues. We would also see little utility in adopting such a course given, as noted above, the order will expire in a few days time. [10] Thirdly, in relation to the other arguments concerning permission to appeal, we note that no legal challenges have been instituted in relation to the deductions from wages of some ALAEA members. The determination of the appeal will not affect the legal entitlements in relation to such deductions. [11] Fourthly, we see little merit in the ALAEA’s submissions relating to the statutory definition of “industrial action” in s.19 of the Act. The action taken by the ALAEA members was clearly “industrial” in nature, being directly relevant to both work performance and issues relating to the scope of LAMEs’ functions, the subject of consultation and discussion between Qantas and the ALAEA. It has not been shown that the changes in relation to the pre-flight inspections would affect the safety of airline operations (the changes were approved by the Civil Aviation Safety Authority) or would result in health or safety risks to ALAEA members (see s.19(2)(c)(i)). The decision of the Vice President in relation to the issues relating to the definition of “industrial action” in s.19 of the Act and its application in the matter before him was consistent with the established jurisprudence. [12] Fifthly, there was no contention by the ALAEA in the proceedings that it had formally invoked the dispute resolution procedure in the Workplace Determination. In these circumstances, we cannot accept the argument that the conduct of the employees in continuing to carry out the inspections was in accordance with the status quo provisions in the dispute resolution procedure and thereby within the exception to the definition of “industrial action” in s.19(2)(a) of the Act. [13] Overall, we see no public interest in the appeal as would warrant the granting of permission to appeal. We also see little merit in the grounds of appeal relied upon. The grounds of appeal and the submissions in support filed by the ALAEA do not in our view demonstrate any arguable case of appealable error. Accordingly, we decided not to grant permission to appeal. SENIOR DEPUTY PRESIDENT Appearances : L Amos for the Australian Licensed Aircraft Engineers Association. F Parry Senior Counsel and S Meehan of counsel for Qantas Airways Ltd. Hearing details: Sydney. 2012: September 10. 1 PR525218 . 2 PR519230 . Printed by authority of the Commonwealth Government Printer <Price code A, PR528957>