DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

Application by the Australian Federation of Air Pilots
(D2019/5)

Application by AFAP for consent to alter eligibility rules – disputed class is comprised of Qantas mainline pilots, part time pilots, and independent contractor pilots – AIPA, Qantas and TWU oppose proposed rule alteration – consent to proposed rule alteration.

[1] The Australian Federation of Air Pilots (AFAP) has applied for consent from the Fair Work Commission (Commission) to alter its eligibility rules in accordance with s 158 of the Fair Work (Registered Organisations) Act 2009 (RO Act).

[2] For the reasons given below, I have decided to exercise my discretion to consent to the rule change proposed by the AFAP.

Index

[3] My reasons are structured and organised as follows:

Proposed amendments to the AFAP’s eligibility rules

[4] The AFAP wishes to alter its eligibility rules as follows (underlining is used to indicate the proposed amendments):

“RULE 2 – MEMBERSHIP

1. QUALIFICATION

(a) Any person (not being a person normally employed as a pilot on regular public transport airline services extending beyond the Commonwealth of Australia operated by an Australian airline principally engaged in providing international regular public transport airline services and not being a person normally employed as a pilot on airlines services within or extending beyond the Commonwealth of Australia operated by any of:

(i) Ansett Australia Ltd or Mayne Nickless Ltd trading as Ipec Aviation (“IPEC”);

(ii) any successor assignee or transmittee (whether immediate or not) to or of any of the business of Ansett Australia Ltd or IPEC including a corporation that has acquired or taken over or acquires or takes over the business or part of the business of Ansett Australia Limited or IPEC, in relation to that business or part of the business; and

(iii) any employer not included in the preceding sub-paragraphs (i) or (ii) who is or becomes a successor assignee or transmittee (whether immediate or not) to or of any of the business of any of Ansett Transport Industries (Operations) Pty Limited (“ATI”), East West airlines (Operations) Pty Ltd (“EWA”) or Mayne Nickless Limited trading as Ipec Aviation (“IPEC”) including a corporation that is acquired or taken over or acquires or takes over the business or part of the business of any of ATI, EWA or IPEC, in relation to that business or part of that business)

who is employed or is usually employed either wholly or partly in the profession of pilot in civil aviation, including a person normally employed as an air pilot by a domestic operator other than those specifically excluded by the foregoing provisions of this Rule, but excluding pilots, seeking, or holding, part time employment, where such pilot, offering his services on a part time basis is, permanently established in a career or interests outside the aviation industry, and who holds a Commercial Pilot’s Licence, Senior Commercial Pilot’s Licence, Airline Transport Pilot’s Licence or such equivalent as may be issued from time to time by the Department of Aviation or other appropriate Authority, is eligible for membership, together with such other persons who have been appointed offices of the Federation or who are honorary members pursuant to Rule 2.2 (c).

(b) Without in any way limiting the generality of any other provision of this rule or being limited thereby, all persons who are normally employed as pilots on airline services within or extending beyond the Commonwealth of Australia operated in whole or in part and under any name by any of:

(i) Virgin Blue Airlines Pty Limited ABN 36 090 670 965;

(ii) Virgin Blue Holdings Limited ABN 54 100 686 226;

(iii) Virgin Blue International (Holdings) Pty Ltd ABN 89 125 398 754;

(iv) Virgin Blue International Airlines Pty Ltd ABN 63 125 580 823;

(v) Express Blue Air Freight Pty Ltd ABN 50 104 355 508;

(vi) Toll Holdings Limited ABN 25 006 592 089;

(vii) Any successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business of any company or entity referred to in any of the preceding sub paragraphs (i) to (vi) above; and/or

(viii) Any subsidiary related body corporate or associated entity (as those words are defined in the Corporations Act 2001) of any company or entity referred to in any of the preceding sub-paragraphs (i) to (vii) above shall be eligible for membership.

(c) Without in any way limiting the generality of any other provision of this rule or being limited thereby, the following persons shall be eligible for membership:

(i) any person who is normally employed or seeking to be employed as a pilot on airline services within or extending beyond the Commonwealth of Australia operated by an Australian airline: and

(ii) any person, who, being an independent contractor, would if as an employee performing the work of the kind they usually perform as an independent contractor, qualify for membership in accordance with this Rule.”

Rationale for the proposed alteration to the AFAP’s eligibility rules

[5] Under the AFAP’s current eligibility rule, it can, subject to the limitations described below (the Exclusions), cover all persons employed or usually employed as pilots. As such, the current rule covers both domestic and international pilots; pilots flying any type of aircraft (helicopters, propeller planes, jets, etc); and all types of flying (eg agricultural, recreational, cargo, passenger transport, emergency service, etc).

Exclusions

[6] Three express exclusions apply to the broad coverage conferred by rule 2.1 of the AFAP rules. In plain language, they are as follows:

(a) first, certain types of pilots flying for any Australian airline principally engaged in scheduled international passenger flying cannot join the AFAP (Qantas Exclusion). 1 In practice, this exception only applies to international and, potentially, domestic2 pilots flying for Qantas Airways Ltd (Qantas). This is because (i) although Jetstar Airways Pty Ltd (Jetstar) operates some international flights, it is principally a domestic airline, with the result that the AFAP can cover its international pilots pursuant to rule 2.1(a) of the AFAP’s rules and (ii) although Virgin Blue International Airlines Pty Ltd is both an Australian and principally international airline, the AFAP can cover its pilots pursuant to rule 2.1(b) of the AFAP’s rules;

(b) secondly, pilots employed by any airline which is the successor to the former businesses of Ansett, Ipec or East West cannot join the AFAP (Pilots’ Dispute Exclusion). 3 I accept that, in practice, this exception has no work to do because following the collapse of Ansett, it (including East West) was broken up and its business disappeared. It had no successor. The same is true for Ipec. Because this exception has no work to do, the s 158(4) question does not have to be answered in respect of it; and

(c) pilots holding advanced licences with a career outside of aviation and who only fly on a part-time basis cannot join the AFAP (Part-Time Exclusion). 4

[7] None of these exclusions apply to pilots employed by the Virgin corporate group or the Toll group. 5 All pilots employed within those businesses may join the AFAP.

[8] Further, as a matter of construction, rule 2.1 of the AFAP’s rules does not cover pilots (such as Approved Testing Officers) who work as long-term independent contractors (Contractor Exclusion). That is because independent contractors are not “employed or usually employed” as pilots.

Purpose of amendment to rule 2.1 of the AFAP’s rules

[9] The AFAP’s intention for its proposal to amend rule 2.1 is to overcome the Exclusions described above so as to provide the AFAP with the ability to operate as an occupational union for all pilots in Australia. The AFAP submits that the Exceptions are historical and there is no present justification for maintaining them. The relevant history is summarised below.

Relevant history

[10] The AFAP was established (under a different name) in 1938. It covered all employed pilots (both domestic and international). A version of the Part Time Exclusion has appeared in the AFAP’s rules for many decades. 6

[11] After World War II, under the “two airlines” policy, there were only two domestic carriers — Ansett and Trans Australia Airlines (TAA) — and one international airline, Qantas. The AFAP had a dedicated overseas branch to cover Qantas pilots. In 1981, the overseas branch broke away and formed the union now known as the Australian and International Pilots’ Association (AIPA).

[12] In 1985 and 1986, respectively, both the AFAP and AIPA became registered organisations. The AFAP was entitled to cover pilots, subject to various exceptions. The AIPA covered only Qantas international pilots. Then, as now, the Transport Workers’ Union (TWU) also had the capacity to cover pilots, but historically it has had only very small numbers of pilot members.

[13] In September 1989, the pilots’ dispute occurred. In support of pay increases beyond those provided for by the Commission’s wage fixing principles, the AFAP organised bans and the resignation en masse of pilots working for the major domestic airlines: Ansett, Australian Airlines (the former TAA), East West and Ipec (a cargo carrier). The employers refused to re-hire the pilots, and replaced them with other pilots who were generally not members of the AFAP.

[14] These four airlines sought demarcation orders against the AFAP under s 118A of the Industrial Relations Act 1988 (Cth) (IR Act). In 1992, Qantas acquired Australian Airlines, and by September 1993 was itself employing pilots to fly domestically under the Australian Airlines brand. On that basis, it became a fifth applicant for demarcation orders.

[15] On 1 May 1995, SDP Hancock made a demarcation order, effective for one year, depriving the AFAP of the right to represent pilots employed by the five applicant airlines. As provided for by s 118A, on 22 February 1996, this demarcation order was then reflected in amendments to the AFAP’s rules, preventing it from covering any pilots employed by the five applicant airlines.

[16] On 12 February 1996, the AIPA obtained a further demarcation order against the AFAP, also operative for one year, which (after retrospective variation by the Full Bench) deprived the AFAP of the right to enrol pilots in any successor business to Ansett, East West or Ipec. Such an order was necessary because of consolidation in the industry which followed deregulation in 1990. Indeed, by 1996, East West had already been absorbed into Ansett, Ipec had ceased to employ any pilots, and Air New Zealand was known to be interested in purchasing Ansett.

[17] Pursuant to s 118A, this second demarcation order was then referred to VP McIntyre for uplifting into the AFAP’s rules. At the hearing, the AIPA (without opposition from the AFAP or Qantas) proposed that a clause in the form of the Pilots’ Dispute Exclusion be inserted into the AFAP’s rules. The same proposal involved the removal of the specific exclusions for Qantas and Australian Airlines pilots. On 16 July 1996, VP McIntyre approved this proposal. 7

[18] The AFAP contends that the exclusion of any reference to Qantas meant that, as a matter of law, once the second demarcation order expired (on 11 February 1997), the AFAP would regain the right to represent Qantas’s domestic pilots. The AIPA opposes this contention and I address it below in my determination of the disputed class of persons impacted by the proposed rule change. In any event, even after 11 February 1997, the AFAP has in practice refrained from seeking to represent Qantas’s domestic pilots.

[19] The aviation industry changed significantly after the 1996 rule change. In 2000, Virgin commenced flying domestically, and later started international flying. In 2001, Ansett collapsed. In 2004, Jetstar (owned by the Qantas group) started flying domestically, and in 2006 it began international flying. In 2007, Tiger commenced domestic flying.

[20] In 2007, the Commission permitted the AIPA to alter its rules so as to cover pilots employed by Jetstar, and other subsidiaries within the Qantas group. In that case, it was the AFAP which was the incumbent union. The AFAP objected on the basis that it could more conveniently and effectively represent these pilots, but the objection was dismissed by SDP Kaufman, effectively because the AIPA would be an equally convenient and effective union. 8

[21] In 2009, an organisation known as VIPA was registered. Its rules permit it to represent all pilots employed by the Virgin group.

[22] In 2013, Virgin acquired a majority stake in Tiger, and so VIPA became eligible to represent Tiger pilots, as well as the AFAP.

[23] On 6 October 2017, the AFAP’s Convention purportedly voted to amend its eligibility rule in accordance with its current proposal to amend rule 2.1 of its rules, and an application was made to the Commission for consent to the change. However, on 18 June 2018, the application was refused by SDP Hamberger, on grounds that the resolution had not attracted the special majority required by the AFAP’s rules.

[24] On 19 October 2018, another Convention was held, and this time the AFAP contends that its proposal to amend rule 2.1 of its rules was passed by a special majority. The Convention also authorised a delegation to meet with the AIPA with a view to merging and thereby creating a “single pilot union” for Australia.

Qantas’s business

[25] Since at least 2019, the Qantas group has conducted a range of complex businesses. Its Australian-based operations include the following activities:

•  Qantas operates scheduled international and domestic passenger flights under the Qantas brand, generally using pilots employed by Qantas;

•  Jetstar operates domestic and international passenger flights, generally using pilots employed by Jetstar;

•  Sunstate and Eastern Airlines operate scheduled regional domestic flights under the Qantaslink brand, generally using pilots employed by those subsidiaries;

•  Network Aviation operates charter passenger flights for fly-in fly-out workers from Perth airport under the Network Aviation brand, generally using pilots employed by that subsidiary; and

•  Express Freighters Australia (formerly named Qantas Ltd) operates domestic cargo flights under the Qantas Freight brand, generally using pilots employed by that subsidiary.

[26] There is capacity for the movement of pilots between different companies in the Qantas group, either on a temporary or a permanent basis. Since Qantas lifted a hiring freeze in 2016 there has been significant movement within the group.

Current union coverage

[27] Putting aside the position of the TWU, the position with respect to union coverage, at present, is as follows:

Virgin Group

•  Virgin: pilots (international and domestic) may join the AFAP or VIPA. (Under its rules, international pilots may also join the AIPA, but the AIPA has never recruited these pilots);

•  Tiger: passenger pilots (domestic) may join the AFAP or VIPA;

•  Cargo flying: pilots (domestic or international) may join the AFAP or VIPA;

Qantas Group

•  Qantas: pilots (international and domestic) may join the AIPA. (The AFAP contends that under its rules, domestic pilots may also join the AFAP, although the AFAP has not actively recruited them in recent times);

•  Jetstar: pilots (international and domestic) may join the AIPA or the AFAP;

•  Qantaslink (ie, Eastern or Sunstate): pilots (domestic) may join the AIPA or the AFAP;

•  Network Aviation: pilots (domestic) may join the AIPA or the AFAP;

•  Express Freighters Australia (trading as Qantas Freight): cargo pilots (international and domestic) may join the AIPA or the AFAP;

Other flying (apart from the flying described above)

•  All other international pilots (flying cargo planes, VIP/private planes, etc) may join the AFAP; and

•  All other domestic pilots may join the AFAP, subject to the Exclusions.

Legislative scheme

[28] Section 158 of the RO Act governs a proposed alteration to the eligibility rules of an organisation registered under the RO Act, such as the AFAP. Section 158 provides:

“158 Change of name or alteration of eligibility rules of organisation

(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:

(a) in the case of a change in the name of the organisation – the FWC consents to the change under this section; or

(b) in the case of an alteration of the eligibility rules of the organisation:

(i) the FWC consents to the alteration under this section; or

(ii) the General Manager consents to the alteration under section 158A.

(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.

(3) The FWC must not consent to a change in the name of an organisation unless the FWC is satisfied that the proposed new name of the organisation:

(a) this is not the same as the name of another organisation; and

(b) is not so similar to the name of another organisation as to be likely to cause confusion.

(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:

(a) to which those persons could more conveniently belong; and

(b) that would more effectively represent those members.

(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.

(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.

(7) The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:

(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of employees; and

(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.

(8) Subsections (6) and (7) do not limit the grounds on which the FWC may refuse to consent to an alteration of the eligibility rules of an organisation.

(9) Where the FWC consents, under subsection (1) to a change or alteration, the change or alteration takes effect on:

(a) where a date is specified in the consent – that date; or

(b) in any other case – the day of the consent.

(10) This section does not apply to a change in the name, or an alteration of the eligibility rules, of an organisation that is:

(a) determined by the FWC under subsection 163(7); or

(b) proposed to be made for the purposes of an amalgamation under Part 2 of Chapter 3 or Division 4 of Part 7 of Chapter 11; or

(c) proposed to be made for the purposes of a withdrawal from amalgamation under Part 3 of Chapter 3.”

[29] Regulation 124 of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations) permits certain persons to object to the grant of consent to an eligibility rule change under s 158 as follows:

“124 Change of name or alteration of eligibility rules of organisation - objections (s 158)

(1) Any interested organisation, association or person (the objector) may, no later than 35 days after a notice of the receipt of an application under subregulation 121 (1) (the original application) is published in the Gazette, lodge with the FWC a notice of objection to the change of name, or the alteration of the eligibility rules, to which the original application relates.

(2) The notice of objection must:

(a) be lodged with the FWC; and

(b) comply with the requirements of regulation 14.

(3) The FWC may allow an objector to amend a notice of objection if:

(a) a further application is made; and

(b) the objector satisfies the FWC that the objector has further grounds for objection arising from the application mentioned in paragraph (a).

(4) Within 7 days after a notice of objection is lodged with the FWC, the objector must serve a copy of the notice on the organisation that lodged the original application.

(5) An organisation:

(a) may, no later than 14 days after service on it under subregulation (4) of a copy of the notice of objection, lodge with the FWC, in answer to the objection, a written statement signed by an officer of the organisation authorised to sign the statement; and

(b) must, no later than 7 days after lodging a written statement under paragraph (a), serve a copy of the statement on the objector.”

General principles

[30] In AMWU v ResMed Limited, 9 a Full Bench of the Commission adopted the following statement from Re Australian Licenced Aircraft Engineers Association10 concerning the general principles which are applicable to the interpretation and application of s 158 of the RO Act [references omitted]:

“[12] Section 158, in respect of alterations to eligibility rules, is the same in substance as s.204 of the former Workplace Relations Act 1996 (WR Act). In Re CPSU, Community and Public Sector Union a Full Bench of the Australian Industrial Relations Commission (AIRC) considered the nature of the discretionary power exercised in relation to eligibility rules alterations under s.204 of the WR Act. The Full Bench said:

‘[71] The discretion under section 204 is exercisable by reference to several ‘statutory’ considerations, some of which if satisfied condition the exercise of the discretion. Some other considerations are also prescribed by the section and may be given determinative weight at the discretion of the decision maker. The discretion may also be exercised by reference to considerations that are not directly specified by the section...

[72] ... However subsections 204(2), (3), and (4) require consent to be refused if the designated Presidential Member is satisfied or of the opinion as to the criteria specified. In relation to those criteria at least, and subject to the qualification in subsection 204(5), the discretion under section 204 may be said to be structured, although, as his Honour observed: ‘On the other hand, the failure to satisfy those requirements (the subsection 204(4) criteria) does not oblige a designated Presidential member to give consent to such an alteration.’ The criteria in subsections 204(6A) and 204(6B) are expressed in less mandatory terms. Subsection 204(6C) explicitly opens the exercise of the discretion to consideration of grounds that are not limited to those grounds. Moreover, as Williams SDP held ‘in determining an application for consent … the public interest as provided for in s.90 is a relevant and significant consideration’. Although Mr Bromberg in his submissions suggested there was doubt about whether the public interest could relevantly be considered, we consider that the weight of Commission precedents, established practice, and the combined effect of subsection 204(6C) and Regulation 51 leave little room for any such doubt.’

[13] Subsections 204(2), (3), (4) and (5) of the WR Act referred to in the above passage correspond with the same numbered subsections in the current s.158. Subsections 204(6A), (6B) and (6C) correspond with the current subsections 158(6), (7) and (8). The Regulation 51 referred to (that is, reg.51 of the Workplace Relations Regulations) corresponds with regs.124 and 14 of the RO Regulations.

[14] I consider that the Full Bench’s analysis in Re CPSU is, subject to one proviso, fully applicable to s.158 of the RO Act. Section 158(2) provides that the Commission “may” consent (relevantly) to a change or alteration to the eligibility rules of an organisation. Where a statutory conferral of power uses the word “may”, the exercise of the power is discretionary, unless the statute demonstrates a contrary intention. The discretion conferred by s.158(2) is conditioned in a number of respects. Subsection (2) requires that consent not be granted unless the Commission is satisfied that the rules alteration has been made under the rules of the organisation. Subsection (4) also requires that consent not be granted if, in the Commission’s opinion, the persons who would become eligible for membership because of the alteration could more conveniently belong to and be more effectively represented by another organisation. However, subsections (2) and (4) do not limit the grounds upon which consent may be refused, as subsections (6), (7) and (8) make clear. Subsections (6) and (7) identify specific grounds upon which the Commission, in the exercise of its discretion, may refuse consent, and subsection (8) makes it clear that the Commission has a general discretion as to the grounds upon which it may refuse to grant its consent.

[15] The proviso is that there is no equivalent in the RO Act to s.90 of the WR Act, which required the AIRC to take the public interest into account in the performance of its functions. The Commission’s discretion under s.158 must, however, be exercised in accordance with usual principles - that is, it must be exercised in a bona fide fashion having regard to the policy and purpose of the statute. In this respect, s.5 of the RO Act is of significance, in that it sets out the legislature’s intention in enacting the RO Act. Section 5 provides (excluding the note):

Parliament’s intention in enacting this Act

(1) It is Parliament's intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.

(2) Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.

(3) The standards set out in this Act:

(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and

(b) encourage members to participate in the affairs of organisations to which they belong; and

(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and

(d) provide for the democratic functioning and control of organisations; and

(e) facilitate the registration of a diverse range of employer and employee organisations.

(4) It is also Parliament's intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.

(5) Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system.

[16] Leaving aside the mandatory provisions in subsections (2) and (4), the Commission would endeavour to exercise its discretionary power to grant or refuse consent to alterations to eligibility rules in a way which gives effect to the legislature’s intention as expressed in s.5 and as otherwise expressed in the text of the RO Act.

[17] Section 158(2) provides that the Commission may consent to a change or alteration “in whole or part”. Section 204(2) of the WR Act made provision to the same effect, as did the Industrial Relations Act 1988 and the Conciliation and Arbitration Act 1904. In National Tertiary Education Industry Union v Community and Public Sector Union the AIRC (Williams SDP) determined that power to consent to an alteration in part was not confined to the “blue pencil test” - that is, “the physical deletion or striking out of parts of the proposed alteration”…

[18] Where it has been determined that partial consent should be given to an alteration to an eligibility rule by way of the addition of a textual limitation, it was held in NTEU v CPSU and in Re Shop, Distributive and Allied Employees’ Association (Boulton J) that it was not necessary that the partial alteration again be approved in accordance with the organisation’s rules.”

[31] The Full Court of the Federal Court 11 dismissed an application by Resmed for judicial review of the decision of the Full Bench of the Commission in ResMed, albeit the Full Court did not consider the general principles set out above.

[32] I will apply the general principles set out in paragraph [30] above in determining the AFAP’s application for consent to alter its eligibility rules. In addition to those general principles, I make the following observations in relation to the way in which my task under s 158 of the RO Act must be performed:

(a) Unlike the union monopoly coverage situation conferred by the relevant legislation prior to the enactment of the Workplace Relations and Other Legislation Amendment Act 1996 (Cth), 12 the current statutory regime permits competition between unions for members, provided the requirements of s 158 of the RO Act are met. In Re CPSU, the Full Bench held that it was a purpose of the Workplace Relations Act 1996 (WR Act) “to allow for competition between organisations; and, to discourage primarily, if not only, that kind of competition which manifests as a demarcation dispute. That purpose may properly be said to be consistent with encouraging competition between organisations”.13 The reasons the Full Bench reached that conclusion included the terms of s 204(4) of the WR Act (which are materially the same as s 158(4) of the RO Act) and the inclusion of a new object in the WR Act directed to ensuring “freedom of association, including the rights of employees and employers to join an organisation or association of their choice…”14 [emphasis added]. At the time Re CPSU was decided, the statutory regime concerning amendments to an organisation’s rules were contained within the WR Act. In contrast, the statutory regime concerning amendments to an organisation’s rules is now contained in the RO Act. The objects of the RO Act do not include joining an organisation of an employee’s “choice” or any form of “freedom of association”. The objects of the Fair Work Act 2009 (Cth) (FW Act) include “enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented”,15 but do not expressly include the right to join an organisation of an employee’s “choice”. Notwithstanding this difference between the objects of the WR Act and the FW Act/RO Act, it is clear from, inter alia, s 158(4) of the RO Act that the current statutory regime permits competition between unions for members, provided the requirements of s 158 of the RO Act are met.16 It follows, in my view, that the intended purpose and effect of s 158 of the RO Act is to allow for competition between organisations; and, to discourage primarily, if not only, that kind of competition which manifests as a demarcation dispute.

(b) The application of s 158(4) of the RO Act involves a comparative exercise between the relative capacities of the organisations in question. 17 The expression “more conveniently belong” in s 158(4) is oriented towards the perceived convenience of the employees who would become eligible because of the proposed alteration.18 The expression “more effectively represent” concerns the relative capability of the organisations in question to effectively represent the industrial interests of that class of employees.19 The two limbs of the one test are connected and many of the considerations relevant to assessing the “effectively represent” limb may be relevant to the “conveniently belong” limb and vice versa.20

(c) To refuse an application under s 158(4), the relevant employees must more conveniently belong to the other organisation, and it must also be the case that the other organisation would represent them more effectively. 21

(d) To apply s 158(4) of the RO Act, it is necessary to identify the class of “persons who would be eligible for membership because of the alteration” in order that the specified statutory tests for consent may be applied to that class. 22 Identification of that class requires a comparison of the existing coverage of the organisation to the coverage it would have if the Commission were to consent to the proposed rule alteration.

(e) Section 158(4) of the RO Act is conditional: it does not apply if the Commission accepts an undertaking from the applicant organisation that it considers appropriate to avoid demarcation disputes that might otherwise arise. 23

(f) If (and only if 24) the Commission forms the view that a “better organisation” exists for all or part of the relevant employees, then the Commission must consider whether to accept an undertaking under s 158(5). If any such undertaking is not accepted, the proposed rule alteration must be refused insofar as it applies to the class of persons for which a “better organisation” exists, save that an applicant may be afforded an opportunity to provide a different undertaking which may be acceptable.25

(g) The test of which is the better organisation under s 158(4) is to be applied at the time of the decision by the Commission. The test involves broad value judgments. 26

Objections to proposed rule change

[33] The AIPA objects to the Application on the following grounds (particulars omitted): 27

1. That, in relation to subsection 158(4) persons who would be eligible for membership of the applicant because of the alteration could:

i. more conveniently belong to AIPA, and

ii. AIPA would more effectively represent those members.

2. That the alteration would be contrary to the objects of the Act and contrary to the public interest.

3. That the Commission would not set aside an arrangement for the representation of Qantas Pilots.

4. That the Commission would not set aside a previous Order of the Australian Industrial Relations Commission.

5. That in the circumstances, the Commission would not accept the undertaking by the AFAP that it will avoid demarcation disputes.

6. That the prescribed conditions for the application for consent of the Fair Work Commission have not been complied with by the applicant.

7. The proposed alterations do not clearly disclose the intended expansion of the applicant's coverage.

[34] Qantas objects to the Application on the following grounds (particulars omitted): 28

1. It is not readily apparent whether the proposed alteration to the eligibility rule (Rule 2.1) of the registered rules of the AFAP set out in the Application was made in accordance with the AFAP Rules. If it was not, the proposed alteration must not be consented to by the Commission pursuant to section 158(2) of the Fair Work (Registered Organisations) Act 2009 (Cth).

2. The proposed alteration to the eligibility rule of the AFAP Rules set out in the Application must not be consented to by the Commission pursuant to section 158(4) of the FW (RO) Act because, in relation to persons who would be eligible for membership of the AFAP because of the alteration, there is another organisation:

(a) To which those persons could more conveniently belong; and

(b) That would more effectively represent those members.

3. The proposed alteration to the eligibility rule in the AFAP Rules is vague and fails to specify:

(a) the reason for the proposal; and/or

(b) the effect of the proposal,

with sufficient particularity to allow the proposal to be properly considered, as required by Regulation 121(2)(b)(ii) of the Fair Work (Registered Organisation) Regulations 2009 (Cth).

4. The Application, if consented to, would likely give rise to demarcation and other disputes which would cause industrial disharmony and be contrary to the public interest.

5. The Application, if consented to, would extend the eligibility rule in the AFAP Rules to cover a class of persons whom the AFAP is not currently eligible to represent.

6. The Application does not properly represent the current position in relation to the ability or otherwise of the AFAP to represent Australian air pilots.

7. The Application, if consented to, would contravene:

(a) an agreement or understanding to which the AFAP is a party that deals with the AFAP's rights to represent the industrial interests of persons who would be eligible to become members of AFAP; and

(b) an Order of the Fair Work Commission that deals with the AFAP's rights to represent the industrial interests of persons who would be eligible to become members of AFAP.

[35] The TWU objects to the Application on the following grounds: 29

1. In relation to those persons who would otherwise be eligible for membership of the AFAP because in relation to the proposed alteration there is another organisation:

(a) to which those persons could more conveniently belong; and

(b) which could more effectively represent those persons.

Particulars

(i) The TWU is a registered organisation to which a number of persons sought to be covered by the proposed alteration might more conveniently belong;

(ii) The TWU has particular knowledge and experience in the representation of independent contractors than the AFAP;

(iii) The proposed alteration would enable persons covered by the eligibility rules of the TWU to become members of the AFAP;

(iv) The AIPA also has coverage of pilots directly engaged by Qantas;

(v) No other registered organisation has coverage rights of pilots directly employed by Qantas;

(vi) Persons who would be eligible for membership of the AFAP because of the proposed alteration may already be members of the AIPA or the TWU;

(vii) The TWU has the experience, facilities, resources and officials to advance the industrial interests of those persons who are eligible to be members of the TWU better than the AFAP; and

(viii) The TWU would more effectively represent those persons who are eligible to be members of the TWU than the AFAP.

2. The application would increase the risk of industrial disharmony.

Particulars

(i) The proposed alteration to the eligibility rules of the AFAP is likely to lead to competition for membership with the TWU and other registered organisations including the AIPA, resulting in the potential for demarcation disputes between the three registered organisations which would have a consequential effect on the Australian aviation industry.

(ii) Any industrial dispute may have the effect of obstructing or restricting the performance of work in the industry, may harm the business of an employer and may be contrary to the public interest.

3. The alteration of the eligibility rules of the AFAP would be contrary to the objects of the Fair Work (Registered Organisations) Act 2009 in that it is contrary to the public interest.

Hearing

[36] The Application was the subject of a hearing before the Commission, by video conference, on 3 – 4 August, 19 – 20 and 23 – 24 November, and 7 – 8 December 2020. The AFAP adduced evidence from the following witnesses:

(a) Simon Jon Lutton, Executive Director of the AFAP;

(b) Captain David Harget, Check Captain with Eastern Australian Airlines and Chairman of the Board of Directors of the Australian Air Pilots Mutual Benefit Fund;

(c) Captain Louise Pole, President of the AFAP;

(d) Marcus Kent Diamond, Safety and Technical Manager of the AFAP;

(e) Andrew Zoltan Molnar, Legal Counsel of the AFAP;

(f) Captain Benjamin Bollen, Captain with Jetstar, Airways, Chair of the Council of the AFAP and Federal Vice President – Administration and Finance of the AFAP; and

(g) Deanna Louise Cain, Senior Industrial/Legal Officer of the AFAP.

[37] The following witnesses were called by the AIPA to give evidence:

(a) Captain Shane Loney, Captain with Qantas and Vice President Safety and Technical Director of the AIPA;

(b) Sonia Chandra, Senior In-House Lawyer of the AIPA;

(c) Hugh Martin Windsor, Welfare Liaison Officer of the AIPA;

(d) Captain Alric Jason Beavan, Captain with Qantas and Vice President of the AIPA; and

(e) Captain Alan Pickering, Captain with Qantas.

[38] The following witnesses were called by Qantas to give evidence:

(a) Wayne Francis Kearns, retired Check and Training Pilot formerly with Qantas; and

(b) Douglas Peter Alley, Head of Base Operations, Flight Operations with Qantas.

[39] The TWU did not call any witnesses or tender any evidence. The TWU filed written submissions but did not otherwise take any part in the hearing.

[40] In determining the Application and forming the necessary broad value judgments required by s 158 of the RO Act, I have paid careful attention to all the evidence adduced, 30 even though I have not included express references to all such evidence in the reasons for my decision. I have also had regard to the oral and written submissions made on behalf of the AFAP, AIPA, Qantas and the TWU.

Was the proposed rule alteration made under the AFAP’s rules (s 158(2))?

AIPA’s submissions re non-compliance with the AFAP’s rules

[41] The AIPA commences its submissions on this issue by observing that only 22 out of 32 votes were cast in support of the rule amendment proposal at the AFAP’s Annual Convention on 19 October 2018. Because a two-third majority was required, the vote of 22 out of 32 (or 68.75%) was within one vote of failing.

[42] The AIPA submits that amendments to an organisation’s rules are of great importance and there should be strict compliance with the procedures set down to achieve them (Wright v McLeod [1983] FCA 351; 51 ALR 483; Squires, Richard James v Stephenson, Keith (1983) 4 IR 1).

[43] The AIPA submits that in these proceedings the Commission will be mindful not only of the mandatory nature of the relevant rules but of the recent litigation involving the parties emphasising the need for strict compliance with the AFAP’s alteration rules. As to the latter point, reference is made to the issue of the AFAP’s compliance with its rules in Australian Federation of Air Pilots, 31 where SDP Hamberger said:

“… There are a number of features in the Rules designed to ensure maximum attendance at meetings of the Convention. Indeed, Rule 1 expressly provides that representation of all members of the AFAP at meetings of the Convention is ‘mandatory’. There are significant restrictions placed on the use of proxies. The quorum for the Convention is set at 75 per cent. There are also penalties for Councils who fail to send their full complement of representatives. If all elected representatives had complied with their obligation to attend the meeting of the Convention (or send a proxy), alterations to the Rules could have been approved by the votes of only two-thirds of those attending.”

[44] The AIPA submits that rule 7 of the AFAP’s rules deals with the Convention of the AFAP and rule 1.14 deals with the amendments to the AFAP’s rules. Those rules cannot be amended except by resolution of the Convention. There are rules governing the calling of the Convention. Rule 7.3(c) states:

“Members of the Convention including the duly elected Council Committee Representatives, Federal Officers and others nominated to be in attendance (as provided under clause 1 of this rule) shall be notified in writing a minimum of 42 days in advance of such Annual Convention. Notification shall clearly specify the time of commencement, the venue, the schedule to be followed and a preliminary agenda. A minimum of 21 days before Convention sits all relevant final working papers will be distributed to Convention delegates.”

[45] The Convention was held on 19 October 2018. As a result, the AIPA submits that members of the Convention had to be provided with two documents:

(a) first, the notification in writing a minimum of 42 days in advance - in this case by 6 September 2018. The notification must state the time of commencement of the convention, the venue, the schedule and an agenda; and

(b) secondly, the final working papers which must be provided a minimum of 21 days in advance - in this case by 27 September 2018.

[46] The AIPA refers to the evidence of Captain Pole in which she states:

•  25 July 2018 - Captain Gravitis was not a Convention member. Nor was Captain Baynham. There were at that time 38 identified Convention members.

•  13 August 2018 - the Convention members on the identified list received the notification in writing. Captain Gravitis did not. Captain Baynham did not. The notification stated the time of commencement of the Convention, the venue, the schedule and an agenda.

•  24 September 2018 - all members of the council committees received the working papers. This included Captain Gravitis. It did not include Captain Baynham. The working papers did not state the time of commencement of the Convention, the venue, the schedule or an agenda.

•  2 October 2018 - Captain Gravitas was appointed Vice Chair of the Rex Pilot Council Committee (becoming a Convention vote holder).

•  2 October 2018 - Captain Gravitis was provided with written notification of the Convention (distributed via email and post on 2 October 2018).

•  5 October 2018 - Captain Baynham was appointed Vice Chair of Cobham Council (becoming a Convention vote holder).

•  19 October 2018 - Captain Gravitis appointed Captain Darroch as his proxy at the Convention.

•  19 October 2018 - Captain Darroch was present at the Convention. He voted. His vote and the vote of Captain Gravitis (cast by proxy) were among the 32 votes cast. Captain Baynham was present at the Convention. She voted.

[47] On the basis of these facts the AIPA submits that the Commission should find that:

•  Captain Gravitas was not ‘notified in writing a minimum of 42 days in advance of such Annual Convention’ for the purpose of rule 7.3(c) of the AFAP’s rules. The document he received 42 days in advance was the working papers. It did not state the time of commencement of the Convention, the venue, the schedule and an agenda; and

•  Captain Baynham was not ‘notified in writing a minimum of 42 days in advance of such Annual Convention’ for the purpose of rule 7.3(c) of the AFAP’s rules.

[48] The AIPA relies on AD Lang’s leading text, Horsley’s Meetings: Procedure, Law and Practice, 5th edition, in which it is stated that:

“proper notice of meeting is one of the requisites of a validly constituted meeting. It is essential that a meeting be properly convened. Where a meeting is convened without proper notice, the meeting is null and void to all intents and purposes, and no business can be validly transacted at the meeting…. The courts have tended to interpret requirements as to notice strictly, and accordingly every such requirement set out in the body’s rules and any applicable statute should be complied with precisely… The prima facie rule is that, in the absence of express provision to the contrary, meetings must be summoned in some such way as will bring notice of them to every member … if rules do not stipulate a procedure to be adopted when calling meetings, they need to be convened in a way that will bring notice of each meeting to every member.”

[49] The AIPA also relies on a recent judgment of the Federal Court in which it was held:

“It was not obviously in contest that the meeting at which the Divisional Executive Resolution was passed would be a nullity if it was called contrary to the requirements of the Divisional Rules. The respondents referred the court in that respect to Myer Queenstown Garden Plaza Pty Ltd v Port Adelaide City Corp (1975) 11 SASR 504, 527 (Wells J). I accept that proposition, as well as the related proposition that, subject to any later ratification, the business conducted at such a meeting would also be a nullity. The validity of the Divisional Executive Resolution thus depends upon the validity of the meeting from which it emerged. ”32

[50] Applying these principles to this case, the AIPA submits that the law results in the following:

•  the rules governing the amendment of rules, including meetings at which rules are amended, are strictly construed and are mandatory;

•  the notification given to Captain Gravitas and Captain Baynham was inadequate under the AFAP’s rules;

•  the business conducted at the meeting, being convened without proper notice, was a nullity; and

•  there were two simple available solutions to the AFAP to deal with the possibility that a committee might appoint a new person entitled to be a Convention delegate in the weeks leading to the Convention. The first is that all of the members of the various council committees could have been sent the notification in August, just as all of the members of the council committees were sent the working papers in September. That way, if one council committee decided to appoint a new person in the weeks leading to the Convention, the notification would already have been provided to him or her containing the time of commencement of the Convention, the venue, the schedule and an agenda. Second, one could clarify from Convention representatives in July whether or not they were going to attend the Convention or resign their position prior to the Convention. That way, any replacement would not be given short notice.

[51] In the alternative, the AIPA submits that there is another available construction of the AFAP’s rules. It is that the persons who must be given notice are the members of the Convention 42 days in advance of the Convention. The members of the Convention who received notice are those who are entitled to vote in the Convention. As Captain Gravitis and Captain Baynham were not members of the Convention 42 days in advance of the Convention, they were not entitled to vote. As a consequence, because the resolution was only passed by one vote, it is submitted that the AFAP cannot satisfy the Commission that it was a validly passed resolution.

[52] As to proxies, the AIPA submits that Captain Pole’s second statement indicates that only 29 of the 38 Convention members attended in person with nine submitting an apology and appointing proxies. The “Voting Strength” of the various councils is set out in the minutes under agenda item 8. The table in those minutes identifies who purported to hold proxies for those absent.

[53] The AIPA submits that rule 1.12 of the AFAP’s rules provides that representation of all members at duly convened meetings is expected and makes it clear that proxies shall be used only in a manner specifically provided for in the Constitution. This is a presumption in favour of attendance. The AIPA further submits that, for the purpose of Convention, rule 7.5 of the AFAP’s rules provides for proxies in limited circumstances and once certain preconditions are met. Rule 7.5 provides:

(a) At any Convention it is desirable that proper representation is accomplished in accordance with these Rules.

Proxies may be issued only for good and sufficient cause. E.g.

(i) a member's incapacity to attend as a result of illness;

(ii) a member's family illness or bereavement;

(iii) a member absent from home on vacation;

(iv) a member absent from home on duty who was unable to be relieved from that duty.

(b) Each proxy must be in writing addressed to the President and shall state the cause of the elected representative's non-attendance.

(c) All proxies at Convention shall be declared at the first Agenda Item after the opening of the Convention and subsequently on each day of the Convention.

(d) The President shall on presentation of proxies check each one and ensure that it complies absolutely with the intent of this rule.

(e) The President shall rule as to the validity of a proxy, but his ruling shall be subject to ratification by the Convention.

(f) Details of all proxies held shall be duly recorded in the Convention Minutes of each day.

[54] The AIPA submits that Captain Pole failed to provide any evidence as to the reason proxies were issued for the purpose of rule 7.5(a). No evidence was provided of each proxy being in writing addressed to the President stating the cause of the non-attendance. As to paragraph 7.5(c), the minutes record that proxies were declared as the second agenda item on 19 October 2018. No evidence is given of the President checking the proxies under rule 7.5(d). As to rule 7.5(e), no evidence was given of any ruling by the President, and the minutes do not record any ratification of any ruling by the President on proxies by the Convention. Rule 7.5(f) requires the minutes to record the details of the proxies. The minutes only record the names of those for whom proxies were issued.

[55] The TWU supports the submissions made by the AIPA.

Qantas’s submissions re non-compliance with the AFAP’s rules

[56] Qantas submits that the AFAP has not adduced any evidence as to the steps taken by the President of the AFAP in compliance with the requirements of rule 7.5 of the AFAP’s rules concerning proxies. In these circumstances, Qantas submits that the Commission cannot be satisfied that the proxies were valid and that, consequently, the vote which occurred at the Convention on 19 October 2018 was in accordance with the AFAP’s rules.

AFAP’s submissions re non-compliance with its rules

[57] The AFAP submits that the AIPA and Qantas raised new technical objections in relation to the s 158(2) requirement after the close of the parties’ cases, and did not give notice of their intention to raise such objections in accordance with the Regulations.

[58] As to the contention that Captain Gravitis did not receive notice of the meeting 42 days before the Convention, as required by rule 7.3(c), the AFAP submits that there are two problems with this submission. The first is that what s 158(2) requires is compliance with the rule concerning constitutional amendments, which is rule 1.14. That rule does not require 42 days’ notice of meeting. In support of this argument, the AFAP relies on the Australian Rail, Tram and Bus Industry Union 33 and AEU v Australian Principals’ Federation34. In the RTBU case, it was held that s 158(2) did not require compliance with notice requirements appearing outside of the rule-amendment provision of the RTBU’s rules. Secondly, the AFAP submits that even if compliance with rule 7.3(c) was required for s 158(2), rule 7.3(c) can only require notification of persons who are Convention members as at the notification date to be given notice of meeting. Captain Gravitis was not a Convention member on that date, and did not need to be notified. The suggestion that the AFAP should have anticipated or guessed that he might later become a Convention member and notified him on that basis, is, so the AFAP submits, absurd.

[59] As to the AIPA’s alternative argument to the effect that since Captain Gravitis joined the Convention after the meeting notification date, he was not entitled to vote, the AFAP submits that the AIPA does not refer to any rule to support this argument and it is directly inconsistent with rules 7.1, 7.8(a) and 1.14(b), which regulate who may vote at Convention, and make no exclusion for persons not given 42 days’ notice of meetings.

[60] As to the AIPA’s submissions concerning Captain Baynham and the giving of 42 days’ notice of the Convention meeting, the AFAP contends that, in their opening submission, the AIPA made no mention of Captain Baynham and did not put her in issue, and so Captain Pole did not initially give any evidence about when she received the various notices. In those circumstances, the AFAP submits it would be procedurally unfair for the Commission to entertain any submission about Captain Baynham. Secondly, in any event, it is submitted that the evidence which is before the Commission shows that Captain Baynham was in the same position as Captain Gravitis: she joined the Convention on 5 October 2018, well after the deadline under rule 7.3(c) for giving notice of meeting. As such, if the Commission is to entertain any challenge based on her not receiving the notice of meeting, it must be dismissed.

[61] The AFAP also submits that it is clear from the third witness statement of Captain Pole dated 7 December 2020 35 that Captain Baynham received both the notice and working paper in the time provided by the AFAP’s rules.

[62] The AFAP submits that the challenge to the proxies is a new objection, not raised in the AIPA or Qantas’s opening submission. It has never been “put in issue”, and so the AFAP should not be expected to respond to it now. It is submitted that the Commission should not entertain the submission. In any event, the AFAP submits that the challenge has no merit because:

(a) proxy-checking is not required by rule 1.14 itself;

(b) compliance with proxy-checking rules, etc, is not required under s 158(2), as these are entirely peripheral to the rule change with which s 158(2) is concerned; and

(c) the only question of substance relating to proxies which is conceivably connected to the s 158(2) question is whether the proxies who actually voted were permitted to be cast. That must be answered in the affirmative. Under rule 7.5(e), the Convention as a whole ultimately decides and ratifies which proxies are to be accepted. It is clear from Captain Pole’s evidence that the Convention accepted all of the proxies notified.

Consideration of compliance with AFAP’s rules

[63] Section 158(2) of the RO Act requires satisfaction that the rule change has been made “under the rules of the organisation”.

[64] In Australian Principals Federation, 36 a Full Bench of the Australian Industrial Relations Commission considered an appeal from a decision of Vice President Ross (as his Honour then was) in which the Vice President granted registration of the Australian Principals Federation as an organisation of employees under Schedule 1B of the Workplace Relations Act 1996 (Cth), s 19(1)(h) of which required, inter alia, that a majority of members had “passed, under the rules of the association, a resolution in favour of registration of the association as an organisation”. The Full Bench relevantly held (at [61] and following) as follows:

“It seems to us that the expression “under the rules of the association” in s 19(1)(h) in relation to the passing of a resolution, requires no more and no less than that the resolution has been passed in conformity with such of the rules of the association as are, on their face, directly concerned with the passage of resolutions by the committee of management. In our view it does not permit a collateral challenge based on breaches of other rules of the association at a time far removed from the passage of the resolution in question.

Specifically, in our view, s 19(1)(h) does not permit a challenge in the form of an attack on the validity of the status of persons who are said to form the committee of management where the evidence suggests that those persons have been accepted as valid members of the association and as members of the committee of management and the breaches said to impugn their status as members of the association or the committee of management occurred at a time far removed from the passage of the resolution in question.

We will shortly turn in greater detail to our reasons for reaching this conclusion, however it seems to us that when s 19(1)(h) is construed in the context of s 19(1), the RAO Schedule and WR Act as a whole (and the predecessors to s 19(1)(h) viewed in the context of the legislation as it then stood) the intent of the Parliament in enacting s 19(1)(h) and its predecessors was to ensure that applications for registration could not be lodged by some official engaged in a frolic of his or her own or by a minority group of members or officials against the wishes of the majority. They are to be made only pursuant to a considered decision of the association or its committee of management. In our view, the Parliament did not intend to authorise an objector to undertake the sort of attack made by the AEU in the present case.

The rules of the APF contain only two rules that directly relate to the passage of resolutions by the committee of management, namely rules 30 and 31:

30. Voting

(a) Voting at all meeting of Council and Executive and general meetings of members shall be by show of hands, except as Council shall decide otherwise.

(b) In the event that a member of Council or Executive being for any reason or at any time unable to be present at any meeting of the same or unable to exercise his/her vote as a delegate under these rules;

(i) he/she may appoint in writing another member of Council or Executive as the case may be as his/her proxy to exercise his/her vote at such meeting;

(ii) at meetings of Council and Executive, the Chairperson shall have the deliberative and casting vote.

31. Quorums

The quorum for any meeting of Council or Executive shall be one half of the persons entitled to attend and vote, provided that at least one member of both sectors is present.

…

There is no appellate authority in which the nature of the requirement imposed by s 19(1) has been directly considered or which clearly supports the strict, technical approach of the AEU based on alleged breaches of the rules at a time far removed from the purported resolution in favour of registration…

…

We think that a confined construction of the requirement in s 19(1)(h) that we have adopted is to be preferred to the broad and strict operation of s 19(1)(h) for which the AEU contends for the following reasons:

(a) The confined approach we have adopted is more consistent with the scheme of the Act;

(b) The AEU’s approach is apt to lead to an outcome that is inconsistent with practical reality and first principles in relation to unincorporated associations; and

(c) The approach urged by the AEU increases the potential for embarrassment arising from the same factual situation giving rise to different outcomes in the Commission and the Courts.”

[65] The requirement to be satisfied, in accordance with s 19(1)(h) of the Workplace Relations Act, that a majority of members had “passed, under the rules of the association, a resolution in favour of registration of the association as an organisation” is similar to the requirement in s 158(2) of the RO Act that a rule change “has been made under the rules of the organisation”. The reasons given by the Full Bench in Australian Principals Federation for its interpretation of the expression “under the rules of the association” in s 19(1)(h) of the Workplace Relations Act are, in my opinion, broadly applicable to s 158(2) of the RO Act.

[66] In my view, the expression “under the rules of the organisation” in s 158(2) of the RO Act requires that the rule change has been made in conformity with such of the rules of the organisation as are, on their face, directly concerned with the amendment of the organisation’s rules. This construction is consistent with that adopted by the Full Bench in Australian Principals Federation, in connection with a provision similar to s 158(2) of the RO Act. Further, this construction of s 158(2) is supported by the express requirement in the provision that the rule change must be made “under the rules of the organisation”. That necessarily focuses attention on the rules of the organisation which govern any amendment to those rules. Section 158(2) does not require that some other act or event which has a connection to the proposal to change the organisation’s rules takes place in accordance with the rules of the organisation.

[67] Rule 1.14 governs amendments to the AFAP’s rules. It relevantly provides:

“(a) The … Rules of the Federation shall not be altered, amended, added to, or replaced, except by resolution of the Convention.

(b) Not less than twenty one days’ notice in writing of any proposed alteration, amendment, addition to or repeal of the … Rules of the Federation shall be given to all Council Committees and no such alteration, amendment, addition or repeal shall be effective unless a majority representing at least two thirds of the total votes available to all Councils and Officers present and entitled to vote at Convention, including any proxies held, cast a vote in favour of the alteration, amendment, addition or repeal.”

[68] It is apparent from rule 1.14 of the AFAP’s rules that it contains rules of the organisation which are, on their face, directly concerned with the amendment of the organisation’s rules. Rule 1.14 requires that:

•  the AFAP’s rules can only be changed by resolution of the Convention;

•  21 days’ written notice of the proposed change to the rules must be given to all Council Committees; and

•  a majority representing at least two thirds of the total votes available to all Councils and Officers present and entitled to vote at the Convention, including any proxies held, must vote in favour of the rule change.

[69] The requirements imposed by rule 1.14 may give rise to questions or issues in particular cases. For example, there may be a factual issue in a particular case as to whether particular proxies were “held” within the meaning of rule 1.14(b). In another case there may be an issue as to whether there was a “resolution of the Convention” within the meaning of rule 1.14(a). That may, in turn, give rise to a question as to whether there was a quorum for the Convention, as required by rule 7(a) of the AFAP’s rules. If there was not such a quorum present, rule 7(b) of the AFAP’s rules provides that “the Convention shall lapse”. In those circumstances, there could not have been a “resolution of the Convention” within the meaning of rule 1.14(a) because the Convention lapsed.

[70] Rule 1.14 of the AFAP’s rules imposes its own notice requirements to ensure appropriate persons are given adequate notice of any proposal to change the rules of the organisation. Rule 1.14 does not impose additional requirements that members of the Convention must be given at least 42 days’ notice of an annual convention or that, at least 21 days before the Convention sits, all relevant final working papers must be distributed to Convention delegates. Those requirements are imposed by rule 7.3 of the AFAP’s rules, which deals with meetings and notice of meetings for Conventions. Rule 7.3 is not directly concerned with the amendment of the organisation’s rules.

[71] Similarly, although rule 1.14 requires that any proxies be “held”, it does not impose technical requirements for the checking, etc, of proxies by the President, such as those imposed by rule 7.5 of the AFAP’s rules. Rule 7.5 is not directly concerned with the amendment of the organisation’s rules. I accept the AFAP’s submission that compliance with proxy-checking rules, etc, is not required under s 158(2) of the RO Act, as these are entirely peripheral to the rule change with which s 158(2) is concerned.

[72] I am satisfied on the basis of the evidence given by Captain Pole that the requirements set out in paragraph [68] above were met in relation to the proposal to amend rule 2.1 of the AFAP’s rules. In particular:

•  a Convention (with the requisite quorum) was held on 19 October 2018;

•  21 days’ written notice of the proposed change to rule 2.1 of the AFAP’s rules was given to all Council Committees; and

•  at the Convention on 19 October 2018 a majority representing at least two thirds of the total votes available to all Councils and Officers present and entitled to vote at the Convention voted in favour of the proposed change to rule 2.1 of the AFAP’s rules (22 voted in favour and 10 voted against the rule change proposal. 22/32 = 68.75%). The votes in favour of the proposed rule change included nine proxies held on behalf of persons entitled to vote, including Captain Baynham and Captain Gravitas. The nine proxies were permitted to be cast.

[73] It follows that I am satisfied that the change to rule 2.1 of the AFAP’s rules was made “under” the AFAP’s rules within the meaning of s 158(2) of the RO Act.

[74] In the event that I am wrong in my conclusion as to what is required in order to comply with s 158(2) of the RO Act and compliance with the technical requirements imposed by rules 7.3(c) and 7.5 of the AFAP’s rules was necessary for the rule change to have “been made under the rules of the organisation” within the meaning of s 158(2), I make the following observations and findings:

(a) Regardless of whether any objection or submission has been made in relation to compliance with the AFAP’s rules, I am required by s 158(2) of the RO Act to be satisfied that the rule change has been made under the rules of the organisation.

(b) Rule 7.3(c) of the AFAP’s rules requires that “Members of the Convention including the duly elected Council Committee Representatives, Federal Officers and others nominated to be in attendance (as provided under clause 1 of this rule) shall be notified in writing a minimum of 42 days in advance of such Annual Convention. Notification shall clearly specify the time of commencement, the venue, the schedule to be followed and a preliminary agenda”. It is clear from this rule that the obligation to provide at least 42 days’ notice of the Convention only applies to persons who were “Members of the Convention including the duly elected Council Committee Representatives, Federal Officers and others nominated to be in attendance” at the time the notice was required to be given. There is no dispute that Captain Gravitas and Captain Baynham were not Convention members at the time the notice was required to be given under rule 7.3(c). Accordingly, there was no obligation to provide Captain Gravitas or Captain Baynham with at least 42 days’ written notice of the Convention pursuant to rule 7.3(c) of the AFAP’s rules.

(c) I do not accept the AIPA’s alternative argument that only members of the Convention who received at least 42 days’ written notice of the Convention were entitled to vote at the Convention on 19 October 2018, with the result that Captain Gravitis and Captain Baynham were not entitled to vote because they were not members of the Convention 42 days in advance of the Convention. This contention is inconsistent with rules 7.1, 7.8(a), 7.8(d) and 1.14(b) of the AFAP’s rules, which regulate who may vote at Convention, and make no exclusion for persons not given 42 days’ notice of meetings. It is notable that rule 7.8(d) expressly states that “voting at Conventions shall be carried out exclusively by the duly elected representatives of the Council Committee or their proxy”.

(d) On 5 October 2018 Rohan Smith resigned as Chair of AFAP’s Cobham Council. The Cobham Council appointed the Vice Chair, Rohan Ward, to replace him, and appointed Captain Baynham as Vice Chair. Accordingly, Captain Baynham became a Convention member on 5 October 2018. Notwithstanding that she was not a Convention member on 25 July 2018, Captain Baynham attended an Executive meeting of the AFAP on 25 July 2018 as a proxy holder. At that meeting Captain Baynham was given a copy of a publication which provided written notice of the Convention to be held on 19 October 2018. The publication included the time of commencement, the venue, the schedule to be followed and a preliminary agenda for the Convention. In addition, written notice of the Convention was emailed to Captain Baynham on 13 August 2018, and posted to her on 23 August 2018. The working papers, containing the proposal to amend rule 2.1 of the AFAP’s rules, were sent to Captain Baynham by post on 24 September 2018, and by email on 25 September 2018. Captain Baynham attended the National Convention meeting on 19 October 2018 and voted on the proposal to amend rule 2.1 of the AFAP’s rules.

(e) On 24 September 2018 the working papers for the Convention, containing the proposal to amend rule 2.1 of the AFAP’s rules, were posted to all 38 Convention members, and also all council committee members including Captain Gravitas. On 25 September 2018 the working papers for the Convention, containing the proposal to amend rule 2.1 of the AFAP’s rules, were emailed to all 38 Convention members, and also all council committee members including Captain Gravitas. On 2 October 2018 Captain Gravitas replaced Mark Bennett as Vice Chair of AFAP’s Rex Council and, as such, became a Convention member. On 2 October 2018 Captain Gravitas was sent written notice of the Convention, by email and post. On the morning of the National Convention meeting on 19 October 2018, Captain Gravitas submitted an apology and appointed Robin Darroch as his proxy. Robin Darroch attended the National Convention meeting on 19 October 2018 and voted, by way of proxy, on behalf of Captain Gravitas on the proposal to amend rule 2.1 of the AFAP’s rules.

(f) Although Captain Pole asserted in her first witness statement that the alteration to rule 2.1 was made in accordance with the AFAP’s rules, the evidence does not disclose whether each or any of the nine proxies issued in relation to the Convention on 19 October 2018 met the technical requirements of rule 7.5 of the AFAP’s rules, such as whether each proxy was in writing addressed to the President and stated the cause of the elected representative’s non-attendance, whether the President checked each proxy, whether the President made a ruling as to the validity of each proxy, or whether any ruling made by the President in relation to one or more proxies was ratified by the Convention. I am, however, satisfied on the evidence that the nine proxies issued in relation to the Convention on 19 October 2018 were issued by members of the Convention, were permitted to be cast, were accepted by the Convention, and were included in the vote for the proposal to amend rule 2.1 of the AFAP’s rules.

Identifying the relevant class of persons

[75] In order to identify the class of persons who would be eligible for membership because of the alteration, it is necessary to compare the existing coverage of the organisation with the coverage it would have if the Commission were to consent to the proposed rule alteration.

The differing contentions as to the class

[76] There is no dispute that the class of persons who would be eligible for membership of the AFAP because of the rule alteration includes part time pilots and pilots engaged as independent contractors. The AIPA also submits that the class would include persons “seeking to be employed as a pilot”. The AFAP rejects that contention.

[77] There are three different contentions before the Commission regarding the extent of AFAP’s coverage of Qantas pilots under its rules prior to the proposed amendment:

(a) the AFAP contends that it can presently cover Qantas’s domestic pilots, but not its international pilots, so that the class in issue in this case covers only Qantas’s international pilots;

(b) the AIPA contends that the AFAP can cover neither Qantas’s domestic nor international pilots, so that the class in issue covers all Qantas pilots; and

(c) Qantas contends that the relevant class of persons are the Qantas mainline pilots which are comprised principally of the international or long haul pilots. Qantas does not concede that the AFAP is eligible to cover its domestic pilots.

[78] The parties accept that this issue is to be determined by the proper construction of the AFAP’s current eligibility rules, particularly rule 2.1(a). Rule 2 is set out in paragraph [4] above.

Principles as to the construction of union rules

[79] The proper approach to the interpretation of union rules was summarised by the Full Bench in AMWU v Resmed Limited 37 as follows (references omitted):

“(1) Union eligibility rules will be construed objectively. 

(2) The nature of union eligibility rules means that they should be construed liberally rather than narrowly or technically.

(3) It is permissible to have regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used, and to the previous use of the words in the relevant organisation’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries. Federal awards, including consent awards, made by Commonwealth industrial tribunals at a time when the legislative award-making power was founded upon the industrial disputes power in s.51(xxxv) of the Constitution, are important sources in this respect since a union may only be a party to an industrial dispute involving employees eligible to be its members.

(4) If there is ambiguity as to the meaning of words in the eligibility rules, assistance may be sought in the terms of the industry rule (subject to it being understood that the scope of the eligibility rule is not restricted by the scope of the industry rule). 

(5) Words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended.

(6) Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time that they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation - that is, they may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work. This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted.

(7) The words “in or in connection with” are words of expansion. However, for the requisite connection to be established, the work of the employees in question must be referable or significant to the work of the second group of employees with whom there is said to be a connection. It is not sufficient that the work of the relevant employees makes it possible for an employer to conduct a business involving the performance of work by the second group of employees.” 

[80] Further to principles (1) and (2) in the previous paragraph, while union rules are to be construed objectively, a liberal and purposive approach should be taken to the construction of the rules. 38

Consideration re short haul and long haul pilots

[81] The part of rule 2.1(a) of the AFAP’s rules which requires consideration to determine the scope of the disputed class is as follows:

“… a person normally employed as a pilot on regular public transport airline services extending beyond the Commonwealth of Australia operated by an Australian airline principally engaged in providing international regular public transport airline services …”

[82] There is no dispute and I accept on the evidence that Qantas is “an Australian airline principally engaged in providing international regular public transport airline services”. Accordingly, the question is whether a Qantas pilot is “a person normally employed as a pilot on regular public transport airline services extending beyond the Commonwealth of Australia operated by” Qantas. In my view, this part of the rule is ambiguous because it is susceptible to different interpretations. First, the adverb “normally” may be construed to only relate to the person’s employment as a pilot. Secondly, the adverb “normally” may apply to the composite expression “employed as a pilot on regular public transport airline services extending beyond the Commonwealth of Australia …”, so that it is relevant to inquire as to whether the pilot normally conducts an airline service extending beyond the Commonwealth of Australia. Even if the first of these constructions is preferred, it remains necessary to determine whether the person normally employed as a pilot is employed “on regular public transport airline services extending beyond the Commonwealth of Australia”. The word “on” in this context means “membership or association”. By way of illustration, a person may be employed “on the staff of a newspaper”. 39 The adjective “regular” qualifies the airline services under consideration, not the person’s employment on those services. Hence the question is whether the pilot is employed on public transport airline services extending beyond the Commonwealth of Australia, and if so, are those services “regular”. In this context, the ordinary meaning of regular is “recurring at fixed times; periodic”.40

[83] There is no doubt that Qantas operates regular public transport airline services extending beyond the Commonwealth of Australia. Nor is there any doubt that Qantas’s long haul pilots are employed on such services. The controversial question is whether Qantas’s short haul pilots are employed on such services. The distinction between short haul and long haul pilots is explained below.

[84] The AIPA relies on the history of rule 2.1 as part of the context in which it must be construed. The relevant history, some of which has been referred to above, may be summarised as follows:

(a) During 1989 the AFAP on behalf of its members in several domestic airlines, including Australian Airlines and Ansett, made a claim for a significant pay increase. Qantas was not involved in this dispute. At that time Qantas was an international carrier and the AIPA was solely involved in the representation of its pilots. In support of these claims, the AFAP organised industrial action to be taken by pilots. In response, the employer airlines took action against the AFAP and its officers in the Victorian Supreme Court for damages and foreshadowed litigation against the pilots participating in the industrial action. 41 The AFAP arranged for pilots to execute letters of resignation from their employment. Although there was an issue as to whether the pilots were told that their resignation letters would be displayed as a bargaining tactic but never formally tendered, on 24 August 1989 the AFAP tendered the letters of resignation. Over the next six months the AFAP sought to engage with the various employers, who re-employed some pilots selectively, and on lesser conditions. The relationship between the AFAP and its former members (and the former employers) deteriorated – there were ongoing allegations that the AFAP had misled their members into resigning, and subsequently allegations of former members being threatened.

(b) In early 1990 several of the employer airlines – including relevantly Australian Airlines, commenced proceedings in the Australian Industrial Relations Commission pursuant to s 118A of the IR Act. The gravamen of the proceedings was to remove the right of the AFAP to represent the pilots employed by the applicants, and to substitute another union as the union entitled to represent such pilots. Section 118A provided:

“(1) Subject to this section and subsection 202 (3), the Commission may, on the application of an organisation, an employer or the Minister, make the following orders:

(a) an order that an organisation of employees is to have the right, to the exclusion of another organisation or other organisations, to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation;

(b) an order that an organisation of employees that does not have the right to represent under this Act the industrial interests of a particular class or group of employees is to have that right;

(c) an order that an organisation of employees is not to have the right to represent under this Act the industrial interests of a particular class or group of employees who are eligible for membership of the organisation.

(2) In considering whether to make an order under subsection (1), the Commission:

(a) must consider whether it should consult with appropriate peak councils that are representative of organisations representing employees or organisations representing employers; and

(b) may consult with appropriate peak councils and, where it does so, must inform the parties to the proceedings under this section relating to the order of any views expressed by those peak councils; and

(c) must have regard to any agreement or understanding of which the Commission becomes aware that deals with the right of an organisation of employees to represent under this Act the industrial interests of a particular class or group of employees.

(3) An order under subsection (1) may be subject to conditions or limitations

(4) The powers of the Commission under this section are exercisable only by a

Full Bench or Presidential Member.

(5) Where the Commission makes an order under subsection (1), the Commission must refer the matter to a designated Presidential Member unless the Commission is satisfied that the rules of the organisations concerned do not need to be altered.

(6) Where a matter is referred to a designated Presidential Member under subsection (5), the Presidential Member must, after giving each organisation concerned an opportunity, as prescribed, to be heard, determine such alterations (if any) of the rules of any organisation concerned as are, in the Presidential Member's opinion, necessary to reflect the Commission's order.

(7) An alteration of the rules of an organisation determined under subsection (6) takes effect on the day on which the determination is made.”

(c) The AIPA and Qantas were not involved in the proceedings before the Australian Industrial Relations Commission at the outset. Rather, after the Commonwealth Government announced the intention to sell Australian Airlines to Qantas, the AIPA made an application to intervene in the proceedings on 15 June 1992. That application was rejected. On 14 September 1992 Qantas sought leave to intervene, as a consequence the transfer of employment of Australian Airlines pilots to Qantas. This occurred after the evidence had been completed and involved the case being ‘reopened’. During the reopened case, Qantas, as the effective future employer of the former Australian Airline pilots, sought an order pursuant to 118A such that the AFAP would no longer have coverage, and that the AIPA would have the exclusive right to represent such pilots. SDP Hancock heard extensive evidence in the reopened case, including as to the nature and extent of the merger of the two operations. The reopened case was in reality a contest between the ASU, who sought to extend their coverage rights, and the Qantas application (supported by AIPA) that the coverage rights should be conferred on the AIPA. By this time the AFAP had “capitulated”. 42 The proceedings culminated in a decision of SDP Hancock issued on 22 September 1994, where his Honour said:

“The evidence satisfies me of Qantas' intention progressively to combine the operations of the former international and domestic companies so that there will be a single airline. That airline will obviously have regard to the special characteristics of international and domestic services, just as many businesses recognise the diversity of their markets. The aircraft fleet deployed on the one type of service will differ in composition from the fleet involved in the other, although there may be interchange between the two. The differentiation will be blurred because some aircraft lend themselves to both domestic and international services; and Qantas wishes to use them in accordance with market dictates. Some specialisation of pilots exists and will continue. But the distinction between domestic and international flying will be eroded. Qantas does not intend that a pilot currently flying on international services will necessarily do so indefinitely. Promotion, for example, may entail transfer from second officer on an aircraft used for international flight to first officer on one predominantly used in domestic service. Whereas pilots employed before the merger may retain an historical though informal identity with domestic or international flight, those hired thereafter are recruited as members of a single pilot complement. The transition to a single Chief Pilot and to common training standards are symptomatic of the employer's intention of treating its pilots as a single team. The prospect is that, with the passage of time, industrial arrangements which presume a separation become incongruous. There would be a potential for demarcation issues to generate disputes and restrictions on the use of labour - or even of aircraft.

Moreover, in an era of bargaining, differences in the terms of employment of two groups of pilots could be expected to cause discontent and a risk of leap-frogging claims. For these reasons, Qantas' wish that its pilots belong to a single union is one that - all else being equal - I should be disposed to support.

If there is to be a single union for Qantas pilots, that union can hardly be other than AIPA. Neither the AFAP nor the ASU seeks to remove it. It represents the large majority of Qantas pilots, and has the strong support of the employer. The evidence indicates that it has been a moderate but effective union, competently led and administered.”

(d) In an appeal from this decision by SDP Hancock, the Full Bench refused both the AFAP and the ASU permission to appeal the reopened case. 43 The Full Bench said:

“The granting to AIPA, to the exclusion of the AFAP, of the right to represent under the Act the industrial interests of pilots employed by Qantas and Australian was effected by order (2) of the orders made by Hancock SDP on 1 May 1995. This order of course affects the AFAP. It also affects the ASU as it does not accredit the ASU to represent pilots employed by Australian. From this order each of the AFAP and the ASU has appealed. …

We deal first with the AFAP's appeal from the order and decision in favour of AIPA to the exclusion of the AFAP. This appeal raises similar issues to those raised in the AFAP's appeal against Hancock SDP's first order (dealt with and rejected by us in Chapter 5 of this decision). Indeed, in our view, the AFAP's case with respect to Qantas and Australian is weaker than it was with respect to Ansett, East-West and Ipec. We refer, in particular, to Hancock SDP's view that the AFAP, in the reopened case, capitulated to AIPA (Print L5128 p.285). For the same reasons that we refused the AFAP leave to appeal against order (1) of the orders made on 1 May 1995 we refuse it leave to appeal against order (2).”

(e) By the time the matter reached the rule change stage under s 118A (5) the following had occurred:

•  in September 1994 SDP Hancock made his decision;

•  on 1 May 1995 SDP Hancock made an order to give effect to that decision which stated in relevant part: “The Australian Federation of Air Pilots does not have the right to represent under the Act the industrial interests of air pilots employed by… Qantas Airways limited”;

•  on 5 December 1995 a full bench dismissed an appeal from the decision and the 1 May 1995 order; and

•  on 22 February 1996 Vice President McIntyre made an alteration to the rules of the AFAP under s 118A (5) to give effect to the order made by SDP Hancock on 1 May 1995. 44

(f) It is apparent from the decision of VP McIntyre that his role was to give effect to the order made on 1 May 2015. He excluded from the coverage of the AFAP the right to represent pilots employed by Qantas. It was not limited to domestic or international pilots. At that time VP McIntyre made orders, by consent of the AIPA and the AFAP, to vary the rules of the AIPA and the AFAP. Such variations were, as required by s 118A(5) of the IR Act, necessary to give effect to the orders of SDP Hancock (confirmed on appeal) that the AFAP not have the right to represent the industrial interests of persons employed as pilots formerly by Australian Airlines and now by Qantas, and that the AIPA have the right to represent such pilots. The current AFAP rule 2.1(a) is in the form ordered by VP McIntyre, and its effect is what the AFAP seeks to change in this application.

[85] Returning to the language of rule 2.1(a), I am of the view that the adverb “normally” within the expression “person normally employed as a pilot on regular public transport airline services” applies, on its proper construction, to the person’s employment as a pilot and does not apply to the composite expression “employed as a pilot on regular public transport airline services extending beyond the Commonwealth of Australia …”. As a result, it is not relevant to inquire as to whether the pilot is normally employed on an airline service extending beyond the Commonwealth of Australia. I have reached this conclusion for the following reasons. First, the adverb “normally” appears directly before the expression “employed as a pilot” in rule 2.1(a). This suggests that the natural and ordinary way to read the rule is to inquire whether the person is normally employed as a pilot. Secondly, the history of the rule demonstrates that the objective intention was to amend the AFAP’s rules so that it would not have the right to have any Qantas pilots as members. Thirdly, the expressions “normally employed as a pilot” or “usually employed … in the profession of pilot” are used on numerous occasions through subparagraphs (a) and (b) of rule 2.1. For example, the expression “normally employed as a pilot on airline services within or extending beyond the Commonwealth of Australia” is used in the chapeau to both paragraph (a) and (b) of rule 2.1. When so used, the adverb “normally” can only apply to the person’s employment as a pilot. Fourthly, the notion that the rule consistently refers to persons normally employed as a pilot is consistent with the exclusion within rule 2.1(a) of “pilots, seeking, or holding, part time employment, where such pilot, offering his services on a part time basis is, permanently established in a career or interests outside of the aviation industry”.

[86] As to the expression “employed as a pilot on regular public transport airline services extending beyond the Commonwealth of Australia” in rule 2.1(a), it is necessary to understand the structure of Qantas’s business and the services on which its pilots are engaged to operate aircraft.

[87] The main business of the Qantas group is the transportation of customers, using complementary airline brands (Qantas, QantasLink, and Jetstar), operating three types of services (regional, domestic and international). 45 Pilots directly employed by Qantas and flying under the Qantas brand are often referred to as Qantas mainline pilots, as distinct from pilots who fly in other parts of the Qantas group, such as for Jetstar or QantasLink. In this decision I will simply refer to Qantas mainline pilots as Qantas pilots. Where I wish to refer to other pilots working in the Qantas group, I will refer to their employer or the airline brand for the aircraft they fly, e.g. Jetstar pilots.

[88] Qantas’s pilots are either short haul pilots or long haul pilots. Qantas’s long haul and short haul pilots have different terms and conditions of employment to each other and they are covered by different enterprise agreements. 46 The distinction between short haul and long haul is not a distinction between domestic and international: it is a distinction between the regulation of different aircraft types operated by the short haul and long haul pilots. Short haul pilots are pilots who only operate Boeing 737-800 aircraft. Long haul pilots operate four types of aircraft – the Boeing 747-400, the Airbus A330-200/300, the Boeing 787-900 and the Airbus A380-800.47 It follows that an Airbus A380-800 aircraft operating from Melbourne to Sydney is a long haul operation. Similarly, a Boeing 737-800 aircraft flying between Perth and Singapore is a short haul operation.

[89] At the point of amalgamation between Qantas and Australian Airlines, Australian Airlines’ pilots were short haul pilots and Qantas’s pilots were long haul pilots. However, this separation dissipated soon after the amalgamation as pilots transferred between different aircraft types.

[90] All Qantas pilots are initially employed under the long haul enterprise agreement in the position of Second Officer under training. 48 The complicated seniority system which operates at Qantas means that a pilot can, over time, be promoted from the position of Second Officer under training and move into a more senior position, including as a Captain or First Officer in a short haul aircraft, covered by the short haul enterprise agreement. During the course of their career with Qantas, pilots may move back and forth between long haul and short haul aircraft types.

[91] Mr Alley gave evidence that Qantas operates the Boeing 737-800 aircraft, flown by short haul pilots, almost exclusively on Australian domestic flights. 49 Captain Bevan gave evidence that all Qantas pilots conduct international operations. Captain Pickering gave evidence, by adopting an earlier statement made by Captain Rivett, that:

•  from when Australian Airlines’ pilots joined Qantas, all pilots’ categories were routinely rostered to perform international services;

•  initially after the amalgamation between Australian Airlines and Qantas, short haul pilots operated some trans-Tasman services and Qantas was keen to have short haul pilots perform a greater number of international services from soon after the amalgamation. In the third enterprise agreement covering Qantas’s short haul pilots the ambit of international services operated by short haul pilots was discussed and was agreed in the International Protocol which remains part of the current enterprise agreement covering Qantas’s short haul pilots. The clause effectively provides that short haul pilots could be rostered to operate within “an area bounded by 90 degrees east longitude to 180 degrees longitude and from the equator to 50 degrees south latitude but including Singapore”;

•  since the time at which Australian Airlines joined Qantas, the Boeing 737-800 aircraft has, at various times, operated between:

•  Perth and Singapore;

•  Perth and Jakarta;

•  Brisbane and Port Moresby;

•  various Australian cities and Denpasar;

•  all trans-Tasman routes; and

•  between various Australian cities and pacific islands including Noumea, Fiji, Apia and Port Vila.

[92] None of the witnesses who gave the evidence summarised in the previous paragraph were challenged on that evidence.

[93] The Qantas Airways Limited Pilots (Short Haul) Enterprise Agreement 2020 (Current Short Haul Agreement) covers “all pilots employed in operations known as Qantas short haul operations who are members, or eligible to be members, of” the AIPA. The following provisions of the Current Short Haul Agreement are relevant to the issue presently under consideration:

•  “6.3 Types of Aircraft and Categories of Flying

The Company is not prepared to enter into narrow legal definitions or award prescriptions of who will fly specific equipment types on specific missions.

There are established practices and commitments, which have been operating on a stable basis over recent years.

In accordance with prior indications by the Company, there has been no attempt to use any category of flying (regional, domestic or international) to the detriment of a group engaged in another category.

It is clear that regional flying is a separate category because it must have a different cost structure.

There have been movements between categories of flying such as some previously domestic trunk flying being moved over to regional airlines, some previously regional international flying being carried out by the domestic trunk airline, and some domestic trunk flying being conducted by the international operation.

In turn, some such transfers of flying may reverse when commercial conditions change.

Such flexibility is in the interests of the Company and its people, and has been beneficial to the future success of the business and its staff.

It is very desirable to retain these common sense arrangements. The parties have built up a level of trust by practical behaviour.”

•  “15 Contract of employment

15.1 Pilots will carry out orders of the Company

15.1.1 A pilot will carry out all orders or instructions given by the Company provided that they are consistent with this Agreement.

15.1.2 Without limiting the application of sub-clause 15.1.1, a pilot will observe instructions and requirements contained in this Agreement and Company manuals.

…

15.4 Work Organisation

15.4.1 The Company may establish, discontinue or re-establish a base anywhere within its network.

15.4.2 Subject to the provisions of this Agreement, a pilot will carry out duty in any part of the world where the Company may be operating from time to time.

15.4.3 Notwithstanding sub-clauses 15.4.1 and 15.4.2, duty by a pilot outside of Australia other than duty provided for under Clause 36 will be subject to appropriate provisions and entitlements being agreed, in advance, between the parties.”

•  “28 General pay rules

28.1 Calculation of Credits

28.1.1 Credits for duties other than ground training duties shall be calculated as the greater of:

(a) Scheduled flight time or actual flight time in accordance with clause 28.1.2 or 28.1.3 as applicable;

(b) International Pattern Credit in accordance with clause 28.1.4;

(c) Credits for assignment of a duty to a pilot who is assignable under Priority 1B in accordance with clause 28.1.5; or

(d) Reserve Call Out in accordance with clause 28.1.6; at the pilot’s applicable hourly rate.

…

28.1.4 International Pattern Credit

(a) An International Pattern Credit is a credit calculated in accordance with 36.2.4.

(b) For international patterns that attract an International Pattern Credit, each day of the pattern shall be deemed to attract an active credit equal to the average daily credit.”

•  “36 International operations

36.1 Application

The provisions of this clause 36 will only apply to patterns including international destinations within an area bounded by 90 degrees east longitude to 180 degrees longitude and from the equator to 50 degrees south latitude but including Singapore and Apia (hereafter referred to as international patterns).

36.2 Pattern building

36.2.1 International patterns will be built and allocated in accordance with the agreed procedures of the day.

36.2.2 The Company will not construct international patterns that do not conform with this clause 36 without first obtaining agreement from the Association.

36.2.3 The Company, in consultation with the Association, will:

(a) use its best endeavours to construct patterns involving a slip at an international destination to reflect the average daily credit hours across all bases for the respective bid period of operation; and

(b) review all international patterns before publication.

36.2.4 Where an international pattern contains a slip greater than thirty six (36) hours, the minimum planned pattern credit will be the average daily credit hours across all bases for each day of the pattern.

…

36.4 Allowances

For all international destinations added to the Company’s short haul operations where an overnight slip will occur, the Company and the Association will meet and address the allowances to be paid for the duty using the following process…”

[94] It is clear from these provisions of the Current Short Haul Agreement that Qantas has the right to direct short haul pilots to operate an aircraft in any part of the world where Qantas may be operating from time to time, and short haul pilots have a corresponding obligation to comply with such a direction. If Qantas directs a short haul pilot to fly an aircraft within the geographical area described in clause 36.1 of the Current Short Haul Agreement, then the international pattern credit provisions of the Current Short Haul Agreement apply and there is no need for “appropriate provisions and entitlements being agreed, in advance, between the parties” in accordance with clause 15.4.3. The geographical area described in clause 36.1 includes Singapore, much of the Indonesian archipelago, New Zealand, Papua New Guinea and the south pacific.

[95] It is also clear from the evidence to which I have referred above that Qantas exercises its right to roster short haul pilots to fly aircraft on international services from time to time.

[96] Because Qantas:

•  operates regular public transport airline services extending beyond the Commonwealth of Australia;

•  has the right to direct its short haul pilots to operate aircraft on its international services;

•  exercises its right to roster its short haul pilots to fly aircraft on its international services from time to time,

I am satisfied that Qantas’s short haul pilots are “employed as a pilot on regular public transport airline services extending beyond the Commonwealth of Australia operated by an Australian airline principally engaged in providing international regular public transport airline services …”

[97] It follows that the disputed class in this case includes Qantas’s short haul and long haul pilots.

Persons seeking to be employed as a pilot

[98] The AFAP’s current eligibility rule covers a person “usually employed” in the profession of pilot. As a matter of construction, that is sufficient to cover a person who has been a pilot in the past, but is currently unemployed and seeking new work as a pilot. Further, s 166(3)(b) of the RO Act provides:

“A person who is qualified to be employed in a particular occupation, and seeks to be employed in the occupation:

(a) is taken to be an employee for the purposes of this section; and

(b) in spite of anything in the rules of the organisation, is not to be treated as not being eligible for membership of an organisation merely because the person has never been employed in the occupation.”

[99] Accordingly, although a person who has qualified as a pilot and is seeking their first job in the profession could not be described as a person “usually employed” as a pilot, s 166(3)(b) of the RO Act operates to render such a person to be eligible for membership of the AFAP.

[100] The proposed amendment to rule 2.1 of the AFAP’s rules refers to “any person who is normally employed or seeking to be employed as a pilot …” It is apparent from the analysis set out above that this merely replicates the effect of the current rules, coupled with the operation of s 166(3)(b) of the RO Act. I agree with the AFAP’s submission that the notion that the proposed rule amendment extends to a person who is not qualified as a pilot but who is nonetheless seeking employment as a pilot is so fanciful that it can be put to one side.

Conclusion as to the disputed class

[101] For the reasons given, the following pilots do not currently have the right to join the AFAP but would have such a right if the rule change proposed by the AFAP were consented to by the Commission:

(a) Qantas’s short haul and long haul pilots;

(b) pilots who work as independent contractors; and

(c) part time pilots

(the Class)

More conveniently belong and more effectively represent (s 158(4))

[102] The closing written submissions filed by the AFAP, the AIPA, Qantas, and the TWU come, in total, to almost 300 pages. Many of those pages are focused on the “better organisation” test posited by s 158(4) of the RO Act. I set out below a summary of the main submissions made by each party in relation to s 158(4) but have not sought to reproduce, in full, or refer to, every part of those submissions. I then give consideration, having regard to all the submissions made by the parties, to the question of whether there is, in my opinion, another organisation to which the Class (or any part of it) could more conveniently belong and that would more effectively represent those members.

AFAP’s submissions

[103] The AFAP’s overarching submission is that neither the AIPA nor the TWU are “better organisations” for the Class (or any part of it); as such, the Commission should allow the application on the ground that it will benefit the Class to have a capable and experienced pilots’ union to join, or a second such union, in the case of Qantas’s pilots.

[104] The AFAP submits that the “better organisation” test does not ask which organisation has more legally enforceable rights of representation. It asks which organisation is more capable of effectively representing members. They say effective representation may well be delivered without enforceable rights.

[105] The AFAP contends that while an assessment of the capability of the competing unions might require some assessment of what the future might hold, that task must be done rationally and based on evidence (generally the experience of the past), avoiding speculation, particularly about the distant future. So, for example, the AIPA’s prediction that, even if this application were allowed, Qantas’s enterprise agreements would continue to give the AIPA exclusive rights for “many decades to come” should be rejected as pure speculation.

[106] The AFAP submits that the claim of the TWU to be a “better organisation” for Qantas’s pilots can be put to one side immediately, given it led no evidence as to its capacity to represent them.

[107] The other potential “better organisation” is the AIPA. The AFAP submits that the AIPA is capable of providing effective and convenient representation for Qantas’s pilots, but that the AFAP would be just as capable, such that it could not be said that the AIPA was “better”.

[108] The AFAP submits that it is an effective pilots’ union which is active throughout the entire aviation industry, save for within Qantas.

[109] The AFAP has more than 80 years’ experience representing pilots, across a range of airlines. It submits that its knowledge and experience in piloting matters is established by the fact that it is the only union which maintains the Air Pilots Award 2020, which underpins all pilot entitlements, including at Qantas. The AFAP submits it has expertise in safety matters and through various international organisations of which it is a member (AusALPA and IFALPA) contributes to safer flying worldwide. The AFAP has a dedicated welfare function, led by a Welfare Director, and provides free counselling, and drug and alcohol programs. The AFAP submits that its member fees are reasonable; indeed, on Qantas’s workhorse plane, the B737-800 (almost 60% of its fleet), the AFAP’s dues are 13% lower than the AIPA’s fees for a Captain.

[110] The AFAP has about 4,715 members, which is more than double AIPA’s membership. In normal times the AFAP earns more than $4.2 million annually from dues; its strong reserves position ($4.75 million in current assets) will carry it through the COVID-19 period.

[111] Under its rules, the AFAP is a federation of Councils, where each Council comprises AFAP members working for a particular airline or branch of flying. Each Council is governed by an elected Council Committee. The Councils are represented at the “federal” level on the Executive Committee (consisting of Council representatives and federal officers), and at the Convention, which is the AFAP’s supreme governing body. The AFAP submits that if this application is allowed, a Qantas Mainline Council (QMC) will come into being within the same structure to represent Qantas pilots. Like the other Councils, the QMC will in practice be “autonomous”. What that means, under the rules, is as follows. In matters affecting only Qantas pilots, the QMC will govern itself independently. However:

(a) the QMC’s budget is set by Convention, and it is not permitted to expend additional funds without the permission of the federal Finance Committee;

(b) the Executive must pre-approve the taking of any industrial action;

(c) the Executive must approve any enterprise agreements made;

(d) in matters affecting other Councils, the QMC is subject to control by the Convention; and

(e) the Convention retains the ultimate power to dissolve the QMC.

[112] The AFAP submits that these limits on autonomy are important to prevent the prospect of QMC becoming “captured” by Qantas. Further, the AFAP federated structure means that the Executive and Convention will constantly monitor the QMC’s conduct, and can exercise important powers of criticism, persuasion and influence in order to keep it on the right path.

[113] A further advantage of the AFAP structure, so it contends, is that the QMC can directly draw upon the experience of other Councils and other airlines. This allows a cross pollination of ideas, and coordination of strategy across the whole industry. The AIPA lacks this advantage, as it is restricted to the Qantas group airlines.

[114] If the QMC comes into being, its members will elect a Committee consisting of at least four persons. Given the average pilot tenure at Qantas is around 20 years, the AFAP submits that the Committee is likely to comprise very experienced Qantas pilots, with knowledge of the rostering system, enterprise agreements, and so forth, and with personal relationships with Qantas managers.

[115] The AFAP submits that the QMC Committee will be supported by the federal level of the AFAP. That level will be well staffed. It consists of eight federal office bearers, including a Safety & Technical Director, and a Welfare Director, who are dedicated to those important roles. In addition, the AFAP employs 20 staff, including Mr Lutton (the Executive Director), 12 staff with industrial/legal qualifications, and four pilots with safety expertise. The QMC may draw on all of their expertise.

[116] If the QMC Committee has particular queries unique to international flying, the AFAP contends that it will be able to call on the international pilots (like Captain Bollen) who are members of the Virgin and Jetstar Councils, or the AFAP’s overseas members (currently flying internationally with overseas airlines). It will also be able to call on employed staff, like Ms Cain, who are familiar with the rostering and industrial arrangements for international flying at Virgin and Jetstar.

[117] If the answers received are not adequate, the AFAP submits that it has retired or redundant Qantas pilots (including long haul pilots) available to ask. In this regard, the AFAP says that Mr Lutton has a standing offer from an international pilot with over 35 years’ experience (Captain Perry McNeil) for assistance at any time. Captain McNeil formerly performed the scheduling role which Messrs Jackson and Curran currently perform for the AIPA. The AFAP also submits that, because Messrs Jackson and Curran are contractors, it would be open to the AFAP to hire their services too.

[118] The AFAP also submits that the QMC Committee will be able to make enquiries of other Qantas pilots, Qantas’s industrial relations personnel, and Qantas managers, if need be. To that end, the AFAP relies on the evidence of Mr Windsor, who accepted in the context of approaches which the AFAP might make to Qantas’s doctors and superannuation staff that Qantas’s personnel are professionals, and of course they would provide relevant information and documents upon request.

[119] The AFAP submits that in assessing whether the AIPA is a “better organisation” than the AFAP, the Commission will need to balance any advantages which the AIPA has against any disadvantages, in order to make a global assessment. When considering the AIPA’s disadvantages, the AFAP submits that the difference in structures between the two unions loom large. These structures bear on the likely effectiveness of representation. In particular, the AFAP submits that:

(a) the AIPA’s structure as a company union creates a risk of “capture” by Qantas, and leads to perceived conflicts of interest, which erode pilot trust in the organisation;

(b) the AFAP’s structure as an occupational union means that it has deep knowledge of the aviation industry as a whole, and the QMC will be able to draw on the knowledge and experience of pilots from a range of other airlines;

(c) the AFAP (but not the AIPA) will be able to coordinate industrial strategy across the whole industry, and in that way leverage its collective power. For example, it would be in the pilots’ interests for enterprise bargaining to occur simultaneously at Qantas and Virgin, and this is something that the AIPA has no capacity to engineer; and

(d) in bargaining, the QMC will be privy to (non-confidential) information about Virgin (Qantas’s main competitor), its operations, its plans, its bargaining claims and so forth. This information will be of assistance in bargaining with Qantas.

[120] The AFAP contends that, in addition to providing traditional industrial representation to members, it provides a range of other benefits to members. These include advocacy on safety matters, through its Safety & Technical department. The AFAP also provides a range of welfare services to its members, including counselling from independent psychologists. Membership of the AFAP also permits a pilot to obtain Loss of License insurance through the Australian Air Pilots Mutual Benefit Fund (MBF); it is submitted that many Qantas pilots will likely be interested in this, either because of concerns about the Qantas scheme (which the AFAP says is not an independent scheme), or else because they wish to top up the value of their insurance, as many AFAP pilots currently working for Qantas have done.

[121] The AFAP submits that it will have the staff, resources and structures (through the QMC) to provide excellent representation to Qantas’s pilots. The AFAP contends that it will be just as convenient to join as the AIPA, and indeed cheaper, for many pilots. A further convenience factor to which the AFAP points is that having AFAP membership allows Qantas pilots to retain AFAP membership even if they leave Qantas and move to Virgin or another non-Qantas group airline. While in normal times that would not generally occur, in these unusual times it may be an advantage for some.

[122] The AFAP contends that the AIPA’s assertions as to its superiority in various matters dissolve upon closer inspection. In this regard, the AFAP submits that the relevant test is effectiveness of “representation”, where representation is a process of advancing the views of the represented; the test is not about which union can secure the better industrial outcomes for pilots. While the AFAP accepts that the AIPA has certain representative rights under the applicable Qantas enterprise agreements, the AFAP says those rights are not the end of the story: the task of the Commission is to consider the whole range of things which the AFAP could do to advance the interests of the Qantas pilots, working within the structure of the applicable enterprise agreements. Once the full breadth of the AFAP’s capacity to represent pilots is understood, the AFAP submits that it would be just as effective a representative as the AIPA.

[123] As to the AIPA’s claim that its “entrenched” or “enmeshed” rights under the Qantas enterprise agreements make it superior, the AFAP accepts that the AIPA has some rights which the AFAP will lack, if this application is granted. The AFAP says this is not unusual and it had such rights in the Qantas group airlines when the AIPA entered those airlines in 2007. Further, the AFAP contends that it does not follow from the fact it does not have such rights that it will be precluded from providing good and effective representation to Qantas’s pilots.

[124] It is contended that in many cases (such as when the AIPA is exercising its regulatory function) providing good representation will simply involve letting the AIPA and Qantas do their regulatory job together, trusting to the AIPA to look after the interests of the pilot group. The AFAP submits that is a reasonable position to take, given the AIPA and the AFAP will be representing the same demographic of pilots.

[125] Where the AFAP wishes to advocate a different view to the AIPA, the AFAP submits that it will be able to provide effective representation to pilots by lobbying Qantas directly to make the decision which the AFAP considers right, and/or by lobbying the AIPA (in cases where the AIPA has power to co-determine a matter). The AFAP says that nothing in the applicable enterprise agreements precludes the AFAP from taking this approach, and there is no basis for supposing that Qantas, or the AIPA, would refuse to deal with the AFAP in those circumstances. Indeed, the AFAP submits it is telling that:

(a) after Mr Lutton stated in his first witness statement that he predicted Qantas would deal even-handedly between the two unions, Mr Alley in his first statement chose not to deny the proposition;

(b) After Mr Lutton expanded on the theme of equal treatment in the second witness statement, Mr Alley again chose not to deny these propositions in his second and third statements;

(c) in cross examination, Mr Alley conceded that Qantas respects freedom of choice of union and would accommodate that freedom, for example by allowing both the AFAP and the AIPA to address new pilots at inductions; and

(d) Mr Alley further conceded that the Qantas subsidiaries had accommodated both the AFAP and the AIPA, and made no attempt to distinguish the position of Qantas mainline itself.

[126] Further, if the AIPA and Qantas refused to act as the AFAP advocated, then in the vast majority of cases where the applicable enterprise agreement confers a right of appeal or dispute, the AFAP submits that it would be able to provide further effective representation to affected pilots by representing them in that process.

[127] The AFAP submits that the requirement to consider the whole range of pilot interests is important. While the AIPA relies on its entrenched rights, the AFAP submits that many of these relate to apparently rare events (or rather, having regard to its evidentiary burden, the AIPA failed to lead evidence to show that the rights are frequently invoked) and all the rights are of marginal assistance to a pilot. For example, while the AIPA has a right to submit an accident report, the AFAP submits that the AIPA has not shown how frequently accidents occur, what its reports generally contain, and how those reports therefore help represent a pilot. The AFAP submits that, for all the Commission knows, these reports simply assist Qantas in establishing the cause of an accident in a technical sense, and do nothing to represent a pilot at all. In those circumstances, little or no weight can be put on the fact that the AIPA has this right.

[128] Indeed, if one asks what are the main needs of the Qantas pilot group as a whole, it is submitted they are the same as other pilots: they need the key industrial services, comprising: assistance with negotiating enterprise agreements, representation in the event of a dispute, representation in the event of an incident, and advice on their entitlements. On these core matters, the AFAP contends that the AIPA has no advantage of any substance over the AFAP, and it has not shown how its entrenched rights allow it to provide better representation to a pilot:

(a) in bargaining, the AFAP will be a bargaining representative and will have a statutory right to negotiate, as will the AIPA;

(b) for disputes, a pilot will have a legal right under the applicable Qantas enterprise agreement to be represented by the AFAP, as much as by the AIPA;

(c) for accidents, while the AIPA has a right to submit an accident report to Qantas the AIPA has not shown that this report helps represent the pilots. Rather, if Qantas seeks to discipline a pilot following an accident, it is at that stage that the pilot needs representation, and at that point, the AFAP will have the same right as the AIPA to act as the pilot’s representative; and

(d) for advice on entitlements, the AFAP will have the same right and capacity to provide that advice as the AIPA, and no entrenched right of the AIPA is of any relevance.

[129] The AFAP also submits that many policy issues, such as complaints of bullying or underpayment, will not depend on the exercise of any rights by the AIPA, and the AFAP will be able to represent pilots in the same way as the AIPA would. Further, there are some contexts, such as retrenchments of more than 15 pilots, in which the AFAP says it will have legal rights to be consulted, irrespective of what the applicable enterprise agreement provides. 50

[130] As to the AIPA’s suggestion that the AFAP would be hamstrung in future enterprise bargaining with Qantas on the basis that the AIPA would never agree to relinquish or share any rights under any successor to the current Qantas enterprise agreements, the AFAP submits that:

(a) first, it is useless to speculate what might occur in 2024, when bargaining for the next long haul agreement will occur. The AIPA’s attitude will depend on a range of matters including the relative membership of the two unions in Qantas, the relationship between the unions, Qantas’s position, and so forth, all of which are unknowables at present;

(b) secondly, in any event, as Captain Beavan conceded, the AIPA would be bound as a bargaining representative to consider any claims for sharing of rights made by the AFAP, and again it is possible to imagine a range of scenarios where the AIPA could agree to sharing of rights in particular areas; and

(c) thirdly, history shows that the two unions have shared rights at Jetstar and other Qantas group airlines. The AFAP contends that history is probably the best guide to the future, and so the chances are that the two unions will in fact come to some accommodation with respect to the future.

[131] As to the AIPA’s objection that the AFAP could not effectively represent Qantas’s international pilots because it would not know the relevant history of various matters and transactions, the AFAP submits that the AIPA never explained what particular issues required an understanding of the history for their resolution, what that history was, where it could be found, and how it was that the AIPA (but not the AFAP) would have access to the history. The AFAP submits that this objection falls away once it is appreciated the various means which the QMC will have it its disposal to discover any history which might be relevant to any particular issue.

[132] The AFAP also submits that it has equal access to the history, perhaps save to the extent that Captain Beavan says that the AIPA has the minutes of Consultative Committee meetings in its archive, and perhaps insinuates those minutes would not be shared with the AFAP. But even if that were to be the case, the AFAP submits there is no basis in the evidence to find the lack of access to these minutes, generally, would undermine the ability of the AFAP to advocate effectively on any particular issue.

[133] As to the contention by the AIPA and Qantas to the effect that Qantas’s business is so complex, unique, special and different to other airlines that the AFAP could not operate in its business effectively, the AFAP says this objection was significantly overplayed. The AFAP says there is nothing of substance to suggest that providing effective representation for Qantas pilots would involve anything radically different to doing the same work for Virgin’s international pilots or Jetstar’s pilots. The AFAP contends that the basics of industrial representation of the same across different airlines:

(a) if pilots have queries about their terms and conditions, it will be the job of the QMC (experienced Qantas pilots themselves), supported by the industrial staff of the AFAP, to read the applicable enterprise agreement and provide advice to the member;

(b) when it is time for the next round of enterprise bargaining, it will be the job of the QMC to consult with members to assess what improvements are desired, and then advocate for them at the negotiating table; and

(c) if pilots have concerns about safety, or their welfare, it will be the job of the QMC, supported by the AFAP’s safety and welfare departments, to provide advice and assistance.

[134] As to the AIPA’s contention that the AFAP lacks the personal relationships with Qantas managers which the AIPA pilots and staff apparently have, the AFAP says this objection was also exaggerated. The AFAP submits that nowhere was it properly explained in what circumstances personal relationships were key to providing effective representation. Further it was never really explained, so the AFAP submits, who at the AIPA had these personal relationships. Initially in his statement, Captain Beavan suggested it was the AIPA legal/industrial staff. However, when it was shown that the current staff were generally of recent hiring, Captain Beavan (in re-examination) switched to asserting that the personal relationships were important as between the AIPA officials and Qantas managers. And yet there was no direct evidence about the nature and depth of those relationships, nor was it proven that they were necessary to have in order to make representations to Qantas. To the contrary, the AFAP submits it was Mr Windsor who was candid and frank in admitting to the obvious, which is that Qantas’s managers are professionals, and they will deal with the AFAP even without personal relationships being present at the beginning. The AFAP also points to Mr Alley’s evidence where he confirmed that he made the effort to get to know the AIPA Committee of Management members, and would do the same for the AFAP officials. In addition, insofar as personal relationships are desirable, the AFAP submits that the QMC and its members will no doubt already have a range of good relationships with Qantas managers, which they can rely on. Similarly, Captain Bollen and Mr Lutton attested to their own relationships with senior Qantas managers, including Mr Joyce himself. Finally, insofar as the AFAP might lack a personal relationship with some particular person whose good graces are needed, the AFAP contends that personal relationships can be developed, and quite quickly in a professional context. That has been Captain Bollen’s experience at Jetstar, for example.

[135] By way of conclusion, the AFAP submits there is no doubting that the AIPA, as the incumbent union, enjoys a range of small advantages of incumbency over the AFAP. However, it says that is the position in every s 158 application: the outsider wishes to come into a sphere where they have not been operating before (unless, of course, they were doing so illegitimately, which is not the case here).

[136] It is contended that the true question for the Commission under s 158(4) is not whether the AIPA enjoys these advantages. The question is whether, even allowing for those advantages, the AFAP is capable of representing Qantas’s pilots just as effectively, and conveniently, as the AIPA. The AFAP submits that, as the largest pilots’ union in Australia, with 14 years recent experience representing international pilots at Jetstar and Virgin, it would be just as capable as the AIPA in representing Qantas’s pilots.

[137] As to the part-time pilots who fall within the Class, the AFAP submits there was no evidence that domestic pilots currently fly part-time, although Mr Lutton thought such pilots might exist. If so, it might be thought that they would be found in helicopter flying, tourist flying, and other small operations, rather than in major airlines. The AFAP submits that the AIPA did not lead any evidence to show it would have any advantage in representing part-time pilots at Jetstar and other Qantas subsidiary airlines. As such, the AFAP contends that the proper conclusion is that either the AIPA or the AFAP could effectively and conveniently represent them, and that the AIPA would not be better.

[138] Insofar as the AIPA contends it is better placed to represent part-time domestic pilots at Qantas, the AFAP says that submission should also be rejected. For similar reasons as provided in relation to Qantas pilots generally, the AFAP submits that the proper conclusion is that the AFAP would be just as good an organisation as the AIPA in terms of representing Qantas’s part-time domestic pilots.

[139] As to the independent contractors who fall within the Class, the only potential “better organisation” is the TWU. Given the absence of material filed by the TWU, the AFAP submits the Commission cannot be satisfied that the TWU would be a better union for independent contractor pilots.

[140] In response to the AIPA’s contention that the future is not at all relevant to the s 158(4) test but is relevant to the Commission’s general discretion, the AFAP contends this is wrong. First, when considering the AFAP’s current capacity to represent, assuming the application were allowed, the Commission can and should consider the evidence and submissions about how the AFAP could go about representing members, within the existing Qantas enterprise agreement structures. Secondly, when considering the future (whether for the purposes of s 158(4) or under the general discretion), the Commission must consider the likely future, and reject conjecture and speculation about unknowables. The AFAP submits that this permits consideration of the future but only where there is a sound basis for that consideration. For example, the AIPA’s attempts to speculate about what future enterprise agreements might contain should be rejected, as it depends on a range of matters such as what claims are made by Qantas, the AFAP and the AIPA in the bargaining, what compromises are reached between those parties, and whether or not the pilot group voting on the compromise will approve the agreement. It is contended that it is too difficult for the Commission to be satisfied about those outcomes, on the balance of probabilities.

AIPA’s submissions

[141] By way of summary, the AIPA submits that it is the “better organisation” to represent Qantas pilots because:

•  the AIPA already has a density of over 90% of Qantas pilots. Established patterns of membership and industrial representation are relevant factors in the better organisation test. The AIPA contends that a higher level of density goes to proving that it can more effectively represent Qantas pilots;

•  the terms and conditions enjoyed by Qantas’s pilots are superior to those pilots in other Qantas operations and those in other Australian airlines. The terms and conditions for Qantas’s pilots achieved by the AIPA are the “gold standard”. There is no criticism of the AIPA’s performance;

•  employment regulation in the field is unique. It is career-based service. It is governed comprehensively by an enterprise bargaining scheme that establishes a consultative, and to a significant extent cooperative, model of engagement. The AIPA occupies a unique position in that model and has been successful in securing for itself and its members conditions that are superior to those achieved by the AFAP with any other employer, in any other part of aviation; and

•  the AIPA is also deeply enmeshed within Qantas – that is, the AIPA plays a significant role under the governing enterprise agreements, and in practice, in the business of Qantas. Granting the AFAP’s application will not confer on the AFAP (or its members) many of the benefits the AIPA and its members receive under that model of engagement as a result of that enmeshment.

[142] In terms of the enmeshment provisions, Qantas pilots can, so the AIPA submits, more conveniently belong to the AIPA, and be more effectively represented by it, in part because the enterprise agreements make the holder of the enmeshment rights, the AIPA, a “better organisation”. It is contended that they permit the AIPA to perform the core functions of a union in a more effective manner than can be performed by an organisation without those rights. The AIPA submits that the enmeshment rights have the following features:

•  they are rights. They can be enforced in Courts and the Commission. They are not discretionary benefits that can be granted or refused;

•  they each confer exclusive rights on the AIPA;

•  they each concern important, and in many cases fundamental, conditions of employment. They govern matters as fundamental as to who does what work, where, when and how; and

•  they confer valuable rights on the AIPA. They place the AIPA in a position of power.

[143] The AIPA submits that the core role of unions in representing the industrial interests of employees include:

•  preventing the employer making decisions that may impose a detriment on, or be disadvantageous to, members;

•  making decisions with the employer about matters regulating the performance of the employment;

•  participating, such as via consultation or shared decision-making forum, in the making of decisions with the employer about matters, regulating the performance of the employment; and

•  agreeing to changes in regulation that permit additional benefits over and above the current regulation to be given to employees.

[144] The AIPA submits that a substantial majority of the enmeshment provisions restrict or limit the AFAP in representing those industrial interests in that they establish processes in which the AFAP plays no part.

[145] The AIPA submits that if this application is granted, the AFAP will be reduced to an organisation merely lobbying on behalf of members, reliant on the agreement of the AIPA to advance the industrial interests of the members of the AFAP.

[146] The AIPA also submits that if this application is granted, then the AFAP will be reduced to a subsidiary position. By operation of the enmeshment provisions it is contended that the AFAP will fill a subordinate, secondary, ancillary, auxiliary, lesser, minor, supplementary, peripheral, and second fiddle role compared with the AIPA. It is contended that the AIPA is a “better organisation” because it is not in that subsidiary position.

[147] The AIPA contends that granting the AFAP’s application is likely to damage and undermine the current model in which the AIPA is deeply enmeshed in Qantas and thereby harm pilots in the Class. It is submitted that extending the coverage of the AFAP will result in employees who join the AFAP losing some of the significant benefits of this model and other employees in the Class would be likely to lose, or be at serious risk of losing, the effective enjoyment of other benefits. The AIPA also contends that it would not serve the objects of the RO Act to dismantle the current arrangements.

[148] It is submitted that the Commission should find that the AIPA will vigourously oppose, by doing everything lawfully within its powers, the enmeshment rights that it and its members currently enjoy being conferred on the AFAP. The AIPA also submits that the Commission should find that it is almost inevitable that as a result of this vigorous opposition, even if this application is granted, those enmeshment rights will not be conferred on the AFAP. As a result, the AIPA contends that the AFAP will remain in its less important, subsidiary position serving, at best, a secondary, auxiliary, peripheral role.

[149] The AIPA contends that the AFAP is not serious about representing Qantas pilots. They do not service the members they currently claim they have. The AIPA submits that those members simply want to remain so they can keep their insurance benefits. It is contended that the AFAP seeks to place pressure upon the AIPA to merge with the AFAP.

[150] It is submitted that the availability of loss of license insurance is not relevant in determining which is the better organisation or, alternatively, does not show that the AFAP is a better organisation for the purposes of the test. The AIPA submits that there is no connection between employment and the MBF; there is simply a connection between membership of the AFAP and the MBF in that only members of the AFAP may join the MBF. The AIPA contends that membership of a union, like membership of a babysitting club, might result in collateral benefits unrelated to employment or babysitting. This might include cheaper movie tickets, cheaper mortgages or home loans, or loss of licence insurance. However, in the assessment of effective representation of members, the AIPA contends that the operation of the MBF and the availability of those collateral benefits is irrelevant to the test in s 158(4) of the RO Act and to the general discretion in s 158(8) of the RO Act.

[151] As to fees, the AIPA submits that the evidence on this point is a wash: for some types of members it is cheaper to belong to the AFAP and for other types of members it is cheaper to belong to the AIPA. For Captains on various aircraft flown by Qantas, the annual membership fees charged by the AIPA and the AFAP are as follows:

[152] The AIPA submits that the fees charged by the respective organisations has little to do with the test in s 158. The AIPA contends that lower fees is not an indicator of whether a pilot may conveniently belong to one organisation or the other. The AIPA contends that the difference in the quantum of fees is marginal and those differences are negligible in the context of a highly paid workforce. So far as the level of fees is relevant to the issues to be determined by the Commission, the AIPA submits that its fee structure is better than the AFAP’s. This is especially so, the AIPA contends, given the services offered by the two organisations. For many pilots the AIPA’s fees are cheaper.

[153] The AIPA accepts that both organisations have considerable resources and expertise. The AIPA does not suggest that the AFAP cannot represent pilots. It has considerable experience in doing so. However, the AIPA contends that the “better organisation” test involves a comparative exercise and when the comparison is made it is clear that the AIPA is the “better organisation”. The AIPA contends it is a “better organisation” because of the focus of its expertise, the depth of it, the history of it, and the specific nature of its expertise.

[154] The AIPA submits that it has greater knowledge, compared with the AFAP, in relation to the operation of Qantas, the history of the applicable enterprise agreements and negotiations connected with them, how provisions in those enterprise agreements have been applied in practice, as well as the internal Qantas policies and application of those policies. The AIPA submits that this greater knowledge places it in a better position to represent Qantas pilots compared with the AFAP. It is also contended by the AIPA that the AFAP does not have the same personal relationships that have developed over years between the AIPA and Qantas which facilitate more effective representation.

[155] As to the AFAP’s contention that if the application is granted it will be able to cover Qantas pilots for their entire career if they move their employment to other domestic or international airlines, the AIPA submits that this is without foundation as the evidence is that service within Qantas is career-based. Pilots who enter the service of Qantas rarely leave until retirement, unless they are too ill, or seek to change careers. Consequently, it is contended that Qantas pilots very rarely leave Qantas voluntarily to work as a pilot elsewhere. The AIPA submits that new pilots entering the service of Qantas are seeking, and obtain, a long-term job that often sees them through to retirement.

Qantas’s submissions

[156] Qantas submits that pilots in the Class could more conveniently belong to the AIPA and that the AIPA would more effectively represent them.

[157] Qantas points to the fact that the AIPA has been the organisation that has represented its international pilots since 1981. No other organisation has had the same level or extent of representation as the AIPA since 1981. Although the TWU has had notional eligibility, Qantas’s evidence is that the TWU has not actually represented its international pilots in any manner of moment or significance.

[158] As to whether Qantas would afford the AFAP the same rights as the AIPA or at least provide similar opportunities, Qantas submits that the AFAP’s simplistic analysis and invitation for the Commission to make inferences as to the position ignores a number of important factors. First, it is submitted that the general statements by Qantas that it would respect freedom of choice of union and seek to accommodate such freedoms were expressed in response to speculative scenarios built on specific assumptions. Qantas contends that reliance on such statements to speculate as to the involvement of the AFAP in the future generally ignores the totality of the evidence about the realities of the operational and industrial environment in which Qantas conducts its business. It also ignores, so Qantas contends, Mr Alley’s evidence to the effect that the next enterprise agreement negotiations in 2023 or 2024 will occur at a time when the state of Qantas’s business, the market, and Qantas’s relationship with the AIPA is unknown. Secondly, the questions asked of Mr Alley invited him to make various assumptions, such as that the AFAP and the AIPA would adopt the same perspective and collaborate in the same way that the AIPA has collaborated with Qantas. Stripped of such assumptions, Qantas submits that the answers given by Mr Alley have no application nor utility in assisting the Commission to assess the application. Qantas submits that the evidence makes clear that, in light of the realities of the operational industrial environment in which Qantas conducts its business and the entrenchment of the AIPA, there will likely be conflict and different views as to a range of matters between the two organisations. Thirdly, when questioned about specific examples and provisions in the Current Long Haul Agreement, Qantas submits that Mr Alley consistently gave evidence of various practical issues and difficulties that would arise if the AFAP was granted coverage in this area. 51 Fourthly, Qantas submits that its response to claims by the AFAP in the future will necessarily depend on the circumstances at the time, including the implications of the claims and involvement in terms of costs and operating complexities. Fifthly, Qantas submits that the attitude of the AIPA will be a relevant factor in as much as any conflict between the AIPA and the AFAP has the potential to cause significant disruption in relation to Qantas’s operations. Qantas submits that, as emphasised by Mr Alley, the involvement of the AFAP as an additional organisation will add to the complexity and time required to undertake various processes and steps mandated by the applicable enterprise agreement.

[159] Qantas submits that the AIPA has a deep history and experience of negotiating enterprise agreements with Qantas. It has been negotiating such agreements since 1981. The Current Long Haul Agreement has a nominal expiry date of 28 April 2024 and the Current Short Haul Agreement as a nominal expiry date of 31 August 2023. Qantas submits that these agreements and their earlier versions contain complex and unique terms and conditions that have developed over a lengthy period of time. In contrast to the long experience which the AIPA has in negotiating enterprise agreement with Qantas, it is submitted that the AFAP:

•  has never had any involvement in bargaining in relation to Qantas short haul and long haul pilots;

•  relies on its members employed by the relevant employer to constitute the council within the AFAP which in turn conducts bargaining and other matters relating to that particular employer. There is presently no active QMC;

•  has indicated that it presently has 65 members among the Qantas pilots who were hired since 2016 and are the most junior in terms of the seniority list which operates at Qantas; and

•  over the next few years, assuming this application is granted, can only act or represent the industrial interests of its members in the context of the existing framework provided by the applicable enterprise agreements.

[160] Qantas submits that the comparisons drawn by the AFAP witnesses as to bargaining in the Qantas industrial landscape being similar to what they may have experienced in relation to other airlines are misplaced. None of the witnesses have any experience in relation to bargaining on behalf of Qantas pilots or in relation to any Qantas enterprise agreement. Further, Qantas submits that the applicable Qantas enterprise agreements are unique in as much as they confer a special status and standing to the AIPA in relation to various processes and decision-making. Unlike the Jetstar or Virgin agreements, the Qantas enterprise agreements do not operate on the basis of any equal involvement or rights of participation by various unions.

[161] Qantas submits that the AIPA’s industrial representation of its pilots is not limited to those involving negotiation of the applicable enterprise agreements, and extends to representation of those pilots in relation to many disputes and litigation. Qantas submits that the AIPA’s role in developing and acquiring knowledge of the unique customs, practices and conventions within Qantas’s long haul operations has been important to its representation on behalf of Qantas pilots and engagement with Qantas. This includes the AIPA’s involvement in, and understanding of, Qantas’s seniority system, the AIPA’s participation in Qantas’s induction program, and the AIPA’s involvement in and understanding of other practices applicable to Qantas’s international pilots.

[162] A flawed premise in the AFAP’s submissions, so Qantas contends, is that all of Qantas’s operations are homogeneous such that the AFAP has a familiarity with the Qantas group. Qantas submits that this contention proceeds on the basis that because the AFAP has represented members in other Qantas related entities, particularly Jetstar, it has a familiarity with the business of the entire group. Qantas submits that the implied premise in that contention is that all Qantas group businesses are the same, are structured similarly, have similar objectives and business environments and, importantly, that all pilots across these businesses can be treated as a homogeneous group such that the AFAP can provide them with convenient and effective representation. It is submitted that these premises are unsound and are contradicted by the evidence of Mr Alley, Mr Lutton and Captain Bollen, who gave evidence as to the differentiating factors across these businesses. Qantas submits that it is wrong to treat these businesses as the same, or treat all pilots as the same or having the same industrial needs. Indeed, Qantas submits that this only reinforces why the AFAP is not an organisation that could or would effectively represent the interests of Qantas’s international pilots.

[163] Qantas submits that its international operations are distinct from other airlines such as Virgin and Jetstar. Qantas contends that the fact that the work of Qantas international pilots shares many similarities with the work of other pilots, ignores a fundamental reality about the different operational circumstances and working environment Qantas international pilots have compared to other pilots within the Qantas group and other international pilots at airlines such as Virgin and Jetstar. Seen in its proper light, Qantas submits that the question of effective representation requires a more considered analysis than speaking in terms of flying larger planes or for longer periods and asking whether these differences do not make it impossible for a union to cover Qantas pilots. It is not a question of impossibility. Rather, Qantas submits it is a question about effective representation which in turn requires an experience and exposure in relation to the relevant class of persons sought to be covered in the work which they undertake.

[164] It is telling, so Qantas submits, that notwithstanding the AFAP’s position that it can cover all the Qantas short haul pilots, the AFAP has not engaged in such purported representation.

[165] As to the AFAP’s contention that it will be able to provide benefits to Qantas’s international pilots, Qantas submits this is not relevant or should be given very little weight in the assessment required by s 158(4) of the RO Act. It is submitted that it may be accepted that any union will provide, or seek to provide, a range of services and benefits to its members. However, that does not answer the question as to whether there is another organisation to whom the relevant class of employees can more conveniently belong and who can more effectively represent those persons. In any event, Qantas submits there is no factual basis to the suggestion that lower fees and the provision of loss of license insurance (which is already provided by Qantas) leads to greater relative convenience or will lead to more effective representation. Nor has it been explained, so Qantas submits, how career coverage would have a similar result; there is no evidence from a single Qantas pilot that the absence of career coverage has affected their career or transition as between airlines, if that is the case. Qantas submits that the AFAP’s contention that it can provide a large, highly skilled and resourced group of staff does not establish that those resources are necessarily effective or knowledgeable about the industrial issues affecting Qantas’s international pilots.

[166] Qantas submits that in the AIPA Rules Case the focus of the submissions as to the AFAP being a “better organisation” was on the basis that the AIPA was dominated by long haul pilots who were focused on the Qantas operation, and there was a conflict between the Qantas pilots and the pilots in the other subsidiary operations. SDP Kaufman determined that the AFAP was not the “better organisation” and that both unions could effectively represent the pilots. Importantly, unlike the present matter, those proceedings did not involve any contentions about, for instance, the subsidiary operations being characterised by long-standing industrial arrangements; complexity in terms of the industrial instruments and their histories; the entrenchment of one union over decades in various processes mandated by the applicable industrial instruments; complexity and significant differences in relation to the nature of the operations; and unprecedented challenges to the operations and need for flexibility and cost effective responses to deal with the COVID-19 pandemic. Accordingly, Qantas submits that the Commission will derive no assistance from the decision in the AIPA Rules Case as it was concerned with very different facts and contentions.

TWU’s submissions

[167] The TWU endorses the submissions filed by the AIPA.

[168] The TWU submits that while it has not led any evidence in this matter, it has been accepted by the AFAP that it is eligible to cover employed pilots and contractor pilots. The TWU relies on Mr Lutton’s estimate that the number of TWU pilots is less than 200. The TWU also relies on evidence before the Commission that the TWU has about 20 members within Qantas mainline, and further members in other Qantas group airlines.

[169] The TWU submits that the reason it only has a small number of pilot members is because, as is asserted in the AIPA’s submissions, mainline pilots in Qantas have chosen to join the AIPA rather than the TWU. In this regard, the TWU supports the AIPA’s submissions that Qantas pilots already have a choice as to whether to join another union (the TWU) and have not, to date, chosen to exercise that choice. Notwithstanding this, it does not follow, so the TWU contends, that these workers could not conveniently belong to the TWU or that the TWU could not effectively represent these workers.

[170] The TWU submits that there is no evidence of any dissatisfaction in the TWU pilot membership, either from the members with the Qantas group or more generally. It is submitted that the contention by the AFAP that the TWU does not have the expertise to service the needs of pilots should be rejected; it is made without foundation.

[171] As for pilots engaged as independent contractors, the TWU submits that it has similar rights to cover contractors in other industries, such as owner drivers where the practice is widespread. The TWU contends that it is an experienced representative of contractors. Independent contracting arrangements are characterised by a unique set of circumstances which vary from those of employment arrangements. Workers who are subject to these contracting arrangements require specialised representation given they do not have access to the same protections as employees. The TWU submits that it has effectively represented such workers since its formation. The TWU contends that, for these reasons, contractor pilots could more conveniently belong to the TWU and the TWU could more effectively represent their interests. There is no evidence before the Commission with respect to contractor pilots which says otherwise.

[172] It is contended that the AFAP led no evidence in respect of any contractor seeking to join it, or in respect of any capacity the AFAP has to service contractors, rather than employees. The AFAP’s closing submissions do not deal with contractor pilots at all. The AFAP has the onus to show that they are an organisation to which contractors, as a disputed class, could more conveniently belong. In the absence of evidence, the TWU submits that they have not discharged this onus.

Consideration of more conveniently belong and more effectively represent

[173] Prior to the impact of COVID-19 on the aviation industry, Qantas employed approximately 2,300 pilots in its international and domestic operations. Of those, approximately 1,700 were long haul pilots, and approximately 600 were short haul pilots. Of the 2,300 Qantas pilots, about 2,111 were members of the AIPA, about 20 were members of the TWU, and about 65 were members of the AFAP. Those approximately 65 members of the AFAP were relatively recently recruited by Qantas (from other Qantas group airlines) and they advised the AFAP that they wished to stay members of the AFAP so they could keep their loss of licence insurance with the MBF. The AFAP agreed to keep those pilots on as members, but on the basis that the AFAP would not provide industrial representation to them until this application has been decided. This is consistent with the AFAP’s position, from the 1990s until relatively recently, that the AFAP would not seek to actively cover Qantas pilots.

[174] In June 2020, Qantas announced an intention to reduce pilot numbers by at least 220 in a voluntary redundancy process. Because compulsory redundancies at Qantas operate on a seniority basis (with the most junior pilots being selected first) and the 65 AFAP members who are Qantas pilots are among the cohort of Qantas pilots recruited since about August 2016, if there are not enough Qantas pilots who take voluntary redundancy, the 65 AFAP members will be at risk of being made redundant on a compulsory basis. Save for this potential impact, the proposal to reduce pilot numbers by at least 220 will not materially impact the analysis or reasoning set out below. I address separately in paragraphs [316] to [320] below arguments concerning the impact of COVID-19 and whether that provides a good discretionary reason to refuse consent for the proposed rule change.

[175] I will first deal with that part of the Class comprised of Qantas’s short haul and long haul pilots. I will then address the remaining parts of the Class: pilots who work as independent contractors, and part time pilots.

[176] The claim of the TWU to be a “better organisation” for Qantas’s pilots is rejected. The TWU led no evidence as to its capacity to represent Qantas’s pilots.

[177] The AIPA is the other potential “better organisation”. There is no dispute that both the AIPA and the AFAP are well-resourced unions with a significant number of experienced and competent industrial, technical and other relevant staff. Both organisations have:

(a) a long history of membership and representation in the airline industry, including representation of international pilots. To that end, the AFAP has been representing international pilots in Virgin and Jetstar for about 14 years; the AIPA has been representing international pilots at Qantas since its inception;

(b) experience in effectively negotiating enterprise agreements in the aviation industry;

(c) experience in effectively representing pilots in a range of industrial, disciplinary, employment, safety, and investigation matters;

(d) experience in providing advice to pilots as to their employment entitlements;

(e) safety and technical expertise;

(f) a substantial number of members. The AFAP has about 4,715 members and the AIPA has about 2,360 members;

(g) a strong national presence in the airline industry. This contributes to the strength and influence of each organisation;

(h) a member assistance program;

(i) a welfare function for the benefit of members, including counselling and drug and alcohol programs;

(j) established methods to communicate updates and other relevant information to members;

(k) substantial reserves;

(l) death benefit payments in the event of the death of a pilot;

(m) discount accommodation and a range of other such benefits; and

(n) similar annual membership fees for pilots in the Class. The AFAP charges its fees as a percentage of the member’s “base salary”, whereas the AIPA charges is fees as a percentage of the member’s “gross income”. For some ranks of pilot the AFAP’s annual fees are cheaper and for other ranks the AIPA’s fees are cheaper. I do not consider the differences in membership fees between some ranks of pilots in the Class to be material in the context of the range of services provided by both organisations and the income earned by pilots in the Class.

[178] These factors suggest that Qantas’s pilots could conveniently belong to either the AIPA or the AFAP, and that both organisations would effectively represent those pilots. However, there are some factors which give the AFAP an advantage over the AIPA and others which give the AIPA an advantage over the AFAP. I will describe those relative advantages and disadvantages and make an overall evaluative assessment as to the “better organisation” test required by s 158(4) of the RO Act.

[179] The assessment as to whether there is a better organisation is required to be made at the time this decision is made. 52 Accordingly, the question is whether, at the time this decision is made, there is an organisation other than the AFAP to which the Class (or any part of it) could more conveniently belong and that would more effectively represent those persons. Although the time at which that question must be answered is now, it is permissible, in my opinion, to have regard to likely future events. So much is apparent from the nature of the inquiry - determining whether an organisation would more effectively represent members necessitates an assessment of the types of matters in respect of which members may require representation in the future. For example, it may be concluded in a particular case that, as at the date the application is determined, organisation A is a “better organisation” than organisation B because it is known that the relevant group of members is about to commence enterprise bargaining and organisation A has, as at the date the application is determined, a greater capacity to represent the members in such bargaining than organisation B, and it would be more convenient for the group of members to belong to organisation A than organisation B.

[180] The task is to consider the current capacity of the respective organisations to represent members (assuming the application were allowed), as well as the convenience of those members to belong to the respective organisations.

[181] The principal areas where Qantas pilots are likely to need representation in the future are as follows:

(a) assistance with negotiating enterprise agreements, including bargaining, developing and executing bargaining strategies, potentially taking protected industrial action, drafting provisions to be included in enterprise agreements, preparing documents in support of, or against, an application for approval of an enterprise agreement;

(b) representation in the event of a dispute, grievance or dismissal;

(c) representation in the event of an accident, incident or safety related matter;

(d) advice on their entitlements;

(e) representation in the event of a proposal to introduce material changes in the workplace, including consultation in relation to such changes; and

(f) representation and advice in relation to scheduling and rostering.

[182] In my view, the AFAP has an advantage over the AIPA in its capacity to represent Qantas pilots as a result of its structure as an occupational union and its extensive exposure to, and long experience in, the whole aviation industry. The AFAP is active throughout the entire aviation industry, save for within Qantas. The AFAP has about 4,715 members employed by entities across the whole aviation sector, and has nine Councils operating at Virgin, Jetstar, Eastern, Sunstate, Rex, Cobham, National, Helicopters, and Tiger. The AFAP is the only union which maintains the Air Pilots Award 2020, which underpins enterprise agreements for pilots in the aviation industry. In contrast, the AIPA has effectively been the Qantas in-house union since it was formed in the early 1980’s. About 2,111 of the AIPA’s approximately 2,360 members are Qantas pilots. The remaining approximately 250 members of the AIPA are employed in other Qantas group operations such as Jetstar, Sunstate, Eastern, Network, and Express Freighters Australia. The AIPA does not have as members pilots employed by entities outside the Qantas group.

[183] The AFAP has the capacity to draw on the knowledge and experience of pilots from a range of other airlines and the AFAP’s Councils operating in connection with those other airlines. This will allow a cross-pollination of ideas, and coordination of the AFAP’s industrial strategy for pilots across the whole aviation industry, including strategies such as seeking to arrange enterprise bargaining to occur simultaneously at Qantas and Virgin (Qantas’s main competitor). Further, in bargaining, the AFAP has the capacity to obtain non-confidential information about Virgin, its operations, plans, and bargaining claims and concessions, which will assist in bargaining with Qantas. Outside the bargaining context, the AFAP has the capacity to draw on its long and extensive experience in representing domestic and international pilots across the aviation industry to assist it to provide representation to Qantas pilots in relation to a range of matters and disputes including accidents, investigations, safety matters, promotions, demotions, disciplinary action, and dismissals. This industry-wide experience will, in my opinion, give the AFAP a competitive advantage over the AIPA in its representation of Qantas pilots.

[184] I do not accept the AFAP’s contention that the AIPA’s structure as a company union creates a risk of “capture” by Qantas, and leads to perceived conflicts of interest which erode pilot trust in the organisation. The evidence demonstrates that the AIPA has long history of both working cooperatively with Qantas and “taking on” Qantas in a range of disputes, bargaining and litigation when it is in the best interests of its members to do so.

[185] In my view, the AIPA has an advantage over the AFAP in its capacity to represent Qantas pilots as a result of its long history and experience representing Qantas pilots in relation to a whole range of matters, and the rights and duties the AIPA has under the Current Short Haul Agreement and the Current Long Haul Agreement. A number of those rights and duties are described in the following paragraphs.

[186] Checking bid lines prior to promulgation: the work of Qantas pilots is allocated by bid lines (commonly referred to as rosters) which in turn contain a series of trips (with multiple operations) known as patterns of flying which originate and end at the pilot’s base. Individual patterns can last up to 14 days. The patterns of flying and the rosters themselves are allocated on the basis of seniority and in conformity with complex rules set out in the rostering manuals of the applicable enterprise agreements. These rules include provisions that:

(a) ensure compliance with prescribed flight and duty limits;

(b) ensure that pilots are allocated an appropriate amount of work within the bid period;

(c) ensure that obligations around duty free periods are met;

(d) allocate the work in accordance with pilots’ preferences and seniority (including as modified in certain fleets of aircraft);

(e) allocate specific pilots to certain trips for recency, training and assessment purposes; and

(f) allocate patterns to supervisory pilots in accordance with the separate rostering rules that apply to those pilots.

[187] In order to minimise disputation and ensure that the rosters are properly allocated, the AIPA and Qantas, through the Current Long Haul Agreement, have developed a process whereby:

(a) the AIPA (by its nominees) audits the rosters by being provided with copies of all long haul pilots’ rosters, prior to their promulgation, along with an opportunity to correct errors and deal with issues they may identify. A process for the AIPA or Qantas to refer an issue for independent review to a Board of Appeal is also included; and

(b) once the AIPA nominees have audited the rosters and signed off on them pilots are deprived of the right to dispute the rosters under the dispute settlement procedure in the Current Long Haul Agreement.

[188] The relevant provision is clause RM9 in the Current Long Haul Agreement. It states:

“RM9.1 An agreed audit system will be made available to the Association to allow each pilot’s bid line to be analysed and assessed each bid period.

RM9.2 Where it is apparent either to the Association or the Company that the allocation of patterns has not been made in accordance with the bid line construction rules, the parties will confer and agree upon a method to resolve the problem. Where a resolution is not possible the matter will be determined by direct reference to a Board of Appeal constituted under clause 46.3.

RM9.3 Agreement by the Association and the Company as to the proposed content of each pilot’s bid line is required before promulgation. Following such approval, no aspect of the content of any bid line will be subject to the grievance procedures of the Agreement. If the parties fail to agree, the matter will be referred to a neutral or, if necessary, to the Board of Appeal for resolution. Pending resolution, promulgation of bid lines will proceed as though agreement had been reached.”

[189] Clause RM9.1 confers a series of rights on the AIPA, specifically:

(a) the right to be provided copies of all pilots’ rosters prior to promulgation;

(b) the right to audit the rosters of all pilots, pursuant to an audit system agreed between Qantas and the AIPA;

(c) the right to start a dispute about rosters, by escalating the issue to a Board of Appeal. This right is conferred on the AIPA and not individual pilots. A Board of Appeal is in turn constituted by a nominee of the AIPA, a nominee of Qantas, and a chairperson agreed between the AIPA and Qantas; and

(d) the right to sign off on rosters, and in so doing deprive individual pilots of the right to pursue a grievance in relation to their roster.

[190] Clause RM9.1 confers a decision-making role on the AIPA. The clause promotes fairness as between pilots, and the efficient operation of the enterprise. The clause also provides a sensible and efficient compromise that protects the interests of pilots, ensures transparency around complex rules but equally minimises the need or capacity for publication of vast amounts of information to all pilots and complex grievance procedures. While onerous, the clause creates an efficient system - in that in return for the work of two experienced AIPA representatives (currently Messrs Jackson and Curran, who are also pilots) - Qantas and the pilots have the benefit of an external check and the protection afforded by the denial to individual pilots of the right to use the disputes procedure.

[191] The fair allocation of rosters is very important to Qantas’s pilots. The rosters determine their working hours and, because some patterns are more remunerative than others, impact how much they earn.

[192] The rules governing the allocation of rosters are complex. Many issues that may arise are only identifiable by comparison with another pilot (e.g. a pilot can only know that a pattern was allocated out of seniority by comparison with another pilot who was or is not allocated the pattern). Such comparator information is often unavailable to pilots. In such circumstances, it is very difficult (often impossible) for pilots to individually ensure the correctness of their rosters.

[193] There is no role in the Current Long Haul Agreement for any other organisation in connection with clause RM9. There is no provision of the FW Act that has a similar effect to clause RM9.

[194] Bid line allocation process: for Qantas long haul pilots, work is allocated through a bid process which is assessed by reference to the seniority of the pilots. The roster manual itself, which runs to approximately 90 pages, sets out some of the restrictions on what is ordinarily a seniority driven work allocation process. Clause RM16 of the Current Long Haul Agreement provides:

“The bid line allocation process allocates patterns to pilots in accordance with their expressed bid line preferences in order of seniority, subject to … any other restriction agreed between the Company and the Association.”

[195] Pursuant to this provision, the AIPA and Qantas can agree to alter any of the restrictions about the bid line allocation process in the rostering manual.

[196] The bid line allocation process governs the allocation of work. It concerns who does what work and when and where. Clause RM16 places the AIPA at the centre of that function. It affords the AIPA a critical role in the enterprise as it grants to it rights over matters that would otherwise fall within the exclusive power of the employer. It also permits Qantas and the AIPA to cooperatively adjust rules governing the allocation of work.

[197] Clause RM16 provides what the AIPA describes as a “green light” function in that it permits regulation of the roster allocation process in a way that would otherwise be prohibited by the enterprise agreement. Changes agreed by the AIPA of what work is done by whom, when and where can be used to promote greater safety, and to promote the fairer distribution of trips. It is important for all pilots on the whole that there be a fair distribution of work.

[198] Clause RM16 also provides what the AIPA describes as a “red light” function in that it gives the AIPA the ability to prevent the adjustment of rules that would allow for alterations that are more detrimental to pilots.

[199] I accept the AIPA’s submission that its right under clause RM16 needs to be exercised in the interests of all pilots covered by the Current Long Haul Agreement. 53 Indeed, the AIPA submits that the agreement process under clause RM16 is one of the mechanisms by which the AIPA, in an allocation system based on seniority, balances the interests of the more senior pilots and the more junior pilots.54

[200] The right conferred on the AIPA by clause RM16 is exclusive to the AIPA. There is no similar right granted by the FW Act.

[201] Introduction of new computer programs for pattern line construction: clause RM4.1 in the Current Long Hall Agreement provides:

“All known flying will be included in pattern lines prepared by the Company. Computer programs (agreed between the parties) will group patterns of flying into pattern lines and allocated patterns in accordance with Aviation Regulatory Authority requirements, the provisions of the Agreement and a pilot’s expressed preferences. The computer programs will be identified to the Association and will not be amended in any way without its approval. The Company will, on request, make available to the Association the specifications and such program information as is possible, subject to any copyright or other similar limitation which may be imposed on the Company.”

[202] Clause RM4.1 confers a capacity on Qantas and the AIPA to agree to the computer programs which will be used to group patterns of flying into pattern lines and allocate patterns of work. The provision also confers a capacity on Qantas to amend the computer programs but only if the AIPA gives its approval. It performs a “red light” and “green light” function in that respect: preventing detrimental amendments and permitting beneficial amendments. It facilitates flexibility and thereby productivity. It promotes and protects both Qantas’s and its long haul pilots’ economic interests.

[203] The rights conferred on the AIPA by clause RM4.1 are exclusive to the AIPA. There are no similar rights granted by the FW Act.

[204] Dispensations from flight and duty limits: under clause 11 of the Current Long Haul Agreement, the AIPA is empowered, on behalf of pilots, to permit an operation that would otherwise be contrary to the enterprise agreement (but not against CASA regulation). Clause 11 relevantly provides:

“In circumstances where the Company and the Association agree to adjust the flight and duty limitations (including agreed variations)…, the adjusted limitations will take precedence over the limitations set out in the Agreement until either replaced or repealed by a request from either party.

… The adjusted limitations will be promulgated to all pilots at least 28 days prior to the bid period in which they will become operative. Any agreed changes to flight and duty limitations will be constrained by the flight and duty limitations prescribed by the Aviation Regulatory Authority.”

[205] This provision permits ad hoc changes for a specific operation, as well as agreements with ongoing effect that allow new operations and services to be developed. A recent example of the operation of this provision is the agreement reached between the AIPA and Qantas in relation to research flights between London and Sydney.

[206] The flexibility which this provision permits is important for both pilots and Qantas. For pilots it facilitates a more constructive, pilot friendly standard whereby the requirements can be varied by agreement as circumstances demand. Absent the flexibility provision there would be far greater incentive for Qantas to seek flight and duty limits nearer the CASA maximums. Pilots also have an interest in Qantas servicing new routes and obtaining new opportunities for business and the clause provides a facilitative mechanism to permit this to occur.

[207] The right to commit operations that would otherwise be in breach of the Current Long Haul Agreement conferred by clause 11 requires the express agreement of Qantas and the AIPA. No other organisation has such a right. Nor is there any provision of the FW Act that has any similar effect to clause 11.

[208] Fatigue risk management system: Qantas has a fatigue risk management system for dealing with fatigue and safety limitations and expectations in the operation of aircraft. Clause 11 of the Current Long Haul Agreement, so far as it applies to the introduction of a fatigue risk management system, provides:

“In circumstances where the Company and the Association agree to …introduce a fatigue risk management system (‘FRMS’), the adjusted limitations will take precedence over the limitations set out in the Agreement until either replaced or repealed by a request from either party.

Agreement to have the provisions of any FRMS which has been approved by CASA take precedence over the limitations set out in the Agreement will not be unreasonably withheld. The adjusted limitations will be promulgated to all pilots at least 28 days prior to the bid period in which they will become operative. Any agreed changes to flight and duty limitations will be constrained by the flight and duty limitations prescribed by the Aviation Regulatory Authority.

And duty limitations prescribed by the Aviation Regulatory Authority.”

[209] The potential for a fatigue risk management system to be developed and then override the flight and duty limitations set out in the Current Long Haul Agreement is a matter of clear importance to Qantas’s long haul pilots. The current prescriptive limitations, developed over many years of negotiation, set out limits on duties that are crucial to address safety and fatigue concerns, but also balancing other factors such as the impact of work on a pilot’s long term health, guarantees of work free periods, etc. Such changes are particularly important as they are contemplated at the same time as Qantas develops ultra long range operations, which require pilots to work for longer single periods than has ever previously occurred.

[210] The provision confers a decision making and “green light” role on the AIPA. It ensures the AIPA’s role in the development of a fatigue risk management system. It permits a fatigue risk management system to override flight and duty limits provided the AIPA agrees.

[211] Beyond general consultation, there is no role in the clause for any organisation other than the AIPA to play. There is no other provision of the FW Act that has any similar effect to clause 11.

[212] Scheduling and consultative committees: there are several provisions in the Current Long Haul Agreement and the Current Short Haul Agreement that provide mechanisms for discussion and agreement on fundamental issues concerning pilots’ employment and their terms and conditions. The purpose of the mechanisms and procedures are to provide pilot participation in the development of pilot scheduling policies and procedures; and a cooperative process to adjust operations in the interest of pilots and Qantas during the life of enterprise agreements.

[213] The Current Long Haul Agreement provides:

“8 Consultative Committee

8.1 A consultative mechanism (comprising representatives of the Company and the Association) and procedures appropriate to the size, structure and needs of the Company and Flight Operations, will be established.

8.2 The purpose of the consultative mechanisms and procedures is to facilitate the efficient operation of the enterprise according to its particular needs.

8.3 Where agreement is reached between the Company and the Association through such consultative mechanisms and procedures, and where giving effect to such agreement requires this Agreement to be varied, the parties will make a new enterprise agreement in accordance with the Act to give effect to the terms requiring variation.

RM2 Scheduling Policies

RM2.1 Intent and purpose of scheduling policies

RM2.1.1 It is the intent and purpose of this section to provide for pilot participation in the development of pilot scheduling policies and procedures which will promote the most efficient and economical operation of flights for the Company and favourable working conditions for pilots. Representatives from the Company's flight operations branch and Company employed pilot representatives will consult with regard to the above, the Company retaining the right to determine the geographic location of pilot bases, postings and localised lines, the assignment of flying to bases, postings and localised lines and the grouping of flights into patterns for the purpose of scheduling pilots consistent with the intent of RM2.1.

RM2.1.2 The Company may, in agreement with the Association, recommence a bid period for a category or categories. The Association will not unreasonably withhold its agreement to recommence a bid period.

RM2.1.3 A bid period will only be recommenced where a significant event has occurred that is likely to have a significant impact on pattern line stability and if the recommencement occurs on or before day 29 [15] of the bid period. Examples of such events are natural disasters such as a volcanic eruption, a major weather event, a major political event or significant technical issues with a fleet.

RM2.1.4 The recommenced bid period will be based on available pilot standing bids unless sufficient time exists for a rebid process to occur.

RM2.1.5 Recommencing a bid period may include resetting the divisor for the recommenced period.

RM2.2 Scheduling Committee

A Scheduling Committee will be established and elements of it will meet before each bid period commences and when requested by either party for the purpose of:

(i) developing and maintaining the most efficient methods of scheduling pilots;

(ii) examining the allocation of flying and the bid lines generated for the ensuing bid period;

(iii) coordinating scheduling procedures among bases, postings and localised lines including the methods of promulgating bidding and allocation information;

(iv) consulting with regard to the grouping of flights into patterns;

(v) considering any other matters relating to the scheduling of pilots;

(vi) analyse the previous bid period to identify and track problems with establishment;

(vii) manage and monitor optimum reserve coverage in relation to the planning divisor;

(viii) procedures to be adopted in the event of significant changes to planned flying after the normal time for confirmation of known flying; and

(ix) consulting on the appropriate mix of two (2), three (3) and four (4) pilot flying to be performed by pilots in the A330/A350 SFF categories.

[214] The Current Short Haul Agreement provides:

“12 Consultative Committee

12.1 A Consultative Committee ("Committee") comprising representatives of both the Company and A Consultative Committee ("Committee") comprising representatives of both the Company and the Association, will be established.

12.2 The Committee will meet at regular agreed intervals to review and discuss issues relevant to the Company and pilots.

12.3 The purpose of establishing the Committee is to provide a mechanism and procedures in order to facilitate the efficient operation of the enterprise according to its particular needs.

12.4 Where agreement is reached between the Company and Where agreement is reached between the Company and the Association through such consultative mechanisms and procedures, and where giving effect to such agreement requires this Agreement to be varied, the parties will follow the procedures included in the Act for the variation of an Agreement.

RM2 Consultation and the Scheduling Consultative Committee

RM2.1 The parties will establish a Scheduling Consultative Committee (SCC) consisting of two (2) representatives nominated by The parties will establish a Scheduling Consultative Committee (SCC) consisting of two (2) representatives nominated by the Association and two (2) representatives nominated by the Company.

RM2.2 The SCC will meet at the request of either party (providing reasonable notice is given) in order to discuss any issues or questions regarding:

(a) the implementation of this Rostering Manual;

(b) the interpretation of this Rostering Manual;

(c) the development and maintenance of the most efficient method of rostering of pilots;

(d) the operation of this Rostering Manual;

(e) any potential amendments or variations to this Rostering Manual; and

(f) rostering and scheduling matters generally.

RM2.3 If CAO Part 48 is amended then the SCC will meet and reconsider the terms of the Rostering Manual.”

[215] These provisions confer on the AIPA a decision making role and a right to ongoing consultation. They provide the forum for reaching the agreements otherwise referred to. The scheduling and consultative committees discuss a number of issues that affect a pilot’s employment, including issues such as home transport, long service leave, and fatigue.

[216] The provisions are not analogous to consultation rights that exist under the FW Act. Rather, they establish formal committees, with guaranteed membership, and power to make decisions that have binding effect on Qantas and pilots. No other organisation has a similar role to that of AIPA under these provisions, and whilst similar provisions of pilot bodies and committees exist in other enterprise agreements in the airline industry, they do not contain the same veto powers as that of the AIPA.

[217] Boards of appeal: the Current Long Haul Agreement contains two significant distinct appeal processes. The first is to the Commission under the dispute resolution clause for disputes that arise in relation to the enterprise agreement and the NES. The dispute resolution clause is based on the model term provided by the FW Act and ultimately leads to potential arbitration by the Commission. The second is to a Board of Appeal. An appeal to a Board of Appeal can arise:

•  where a pilot is aggrieved by the outcome of a disciplinary process;

•  through the grievance procedure (dealing with various matters including disputes as to the selection of hotels, and more generally where a pilot considers that: an amendment to Qantas manuals, flight standing orders, notices to flight staff or other relevant documents pertaining to the pilot’s employment prejudicially affects the pilot’s benefit, right or privilege under the Current Long Haul Agreement; or Qantas has altered or introduced a practice that results in any benefit, right, privilege, custom or practice not provided for or referred to in the Current Long Haul Agreement being prejudicially affected);

•  where there is a dispute between AIPA and Qantas arising out of the roster audit process; or

•  where there is a dispute between AIPA and Qantas about the standard of hotels.

[218] Boards of Appeal are established under clause 46.4 of the Current Long Haul Agreement. They are constituted by an independent chairperson, agreed between the AIPA and Qantas, along with a representative of each of the AIPA and Qantas whose role it is to advise the chairperson on matters under consideration. Retired Commissioners of the Australian Industrial Relations Commission, or persons of similar standing, have generally been agreed and appointed as the chairperson of the Board of Appeal. Decisions of the Board of Appeal are binding and final.

[219] Boards of Appeal are a final step in addressing significant issues within the workplace. The proceedings are formal, often with sworn evidence and transcripts. The disputes that Boards of Appeal deal with can be very significant. They provide a mechanism for dealing with these matters where the participants are able to use their specific expertise and the process is tailored to the needs of the enterprise. For individual pilots they can include decisions around disciplinary matters including demotions. Issues around the suitability of accommodation, rostering and changes to Qantas’s manuals/policy may likewise be crucial. The Boards of Appeal enable an independent process with a decision maker agreed by the AIPA, to assess and deal with matters that can be complex, involving a detailed assessment of matters such as the rostering processes.

[220] The only right afforded to organisations other than the AIPA under this clause is the right to represent a pilot in a particular matter. There are no comparable rights given to other organisations under the FW Act.

[221] Re-employment after medical termination: pilots are required to maintain a “class 1 Medical” issued by CASA in order to operate passenger aircraft. Where pilots lose that medical, it may be open to Qantas to terminate their employment. This is known as a medical termination. While some pilots who are so terminated may never recover their Class 1 medical, some will. The Current Long Haul Agreement contains a provision (which is expressed to continue to apply to pilots who transfer from the long haul to the short haul operations) pursuant to which a pilot who is terminated by reason a medical condition can seek re-employment within four years.

[222] The Current Long Haul Agreement relevantly provides:

“23.1 Application for re-employment

A pilot:

(a) whose services were terminated by the Company as a result of the pilot's licence being cancelled or not renewed by the Aviation Regulatory Authority due to medical reasons; and

(b) who, within four (4) years following termination of employment with the Company, is medically cleared by the Aviation Regulatory Authority for the issue of an Airline Transport Pilot Licence; and

(c) who, at the date of being medically cleared by the Aviation Regulatory Authority, meets the criteria agreed between the Company and the Association,

may, within three (3) months from the date of being medically cleared by the Aviation Regulatory Authority, apply in writing for re-employment with the Company subject to the provisions of this clause 23.

Despite the provisions of 23.1(b), the Company may, at its discretion, extend the period during which a pilot may be medically cleared from four (4) to a maximum of seven (7) years.

23.2 Pilot may be required to satisfy a Medical Board of Review as to fitness to fly

Despite being medically cleared by the Aviation Regulatory Authority, the Company may require a pilot to satisfy a Medical Board of Review as to his or her fitness to resume operating as a pilot with the Company. The Medical Board of Review will comprise three (3) qualified medical specialists, one (1) appointed by the Company, one (1) by the Association and one (1) by the pilot, with all associated costs to be paid by the pilot. Any decision by majority of the Medical Board of Review will be final and binding on the pilot, the Association and the Company.

23.3 Procedure for assessing application for re-employment

23.3.1 The Company may reject an application for re-employment if, in the Company's opinion, there are genuine grounds for rejection.

23.3.2 At the Association's request, the Company will confer with the Association on the matter and make available the individual's previous record of employment.

23.3.3 If the Association agrees with the Company's view that the pilot ought not to be re-employed, the pilot's application will be rejected.

23.3.4 If the Association disagrees with and disputes the Company's rejection, the parties will confer in an attempt to resolve the dispute.

23.4 Re-employment subject to certain conditions

23.4.1 Change in category for specified period or permanently

After conferring in an attempt to resolve the disagreement between them about the Company's rejection of an application for employment, the Company and the Association may agree upon re- employment of the pilot under certain specified conditions which may include employment (either for a specified period, or permanently) in a category lower than the category which the pilot held prior to termination with the Company.

23.4.2 Re-employment must be within six (6) months of agreement

Where agreement is reached between the parties in favour of reemployment, the pilot will be re-employed as soon as practicable but, in any event, within six (6) months from the date of the parties reaching agreement.

23.4.3 Consequences if the Company and the Association cannot agree

upon re- employment

If, despite consultation with each other, the Company and the Association are unable to reach agreement upon re-employment of a pilot, the Company will re-employ the pilot in the status below the status the pilot held prior to termination and he or she will remain in that status for a maximum probationary period of 18 months and the Company will review the pilot's performance at intervals of not more than six (6) months.”

[223] The provision is important in the context of a system of seniority. Putting to one side the difficulty individuals who have been medically terminated generally have in obtaining work, absent the clause even if a pilot who was medically retired was able to convince Qantas to agree to their re-employment, they would return as the most junior pilot, and have to restart the very long process in order to be promoted. Further, the provision is not contingent on a vacancy existing.

[224] Clause 23 confers on the AIPA the following roles and responsibilities:

(a) the right to appoint one of the three members to the Medical Board of Review (the pilots and Qantas appointing the other two);

(b) the right to be provided with details of the pilot’s employment record, and to confer with Qantas in the event Qantas declines to re-employ; and

(c) the right to require Qantas to re-employ the pilot over Qantas’s objections.

[225] I agree with the AIPA’s submission that the AIPA’s role under this provision is not simply that of an advocate for a pilot. Rather, its role is as a representative of the interests of all of the pilot group, who have an interest in ensuring that, in all the circumstances, it is appropriate for the pilot to be reemployed. 55

[226] Special circumstances: there is a provision under both the Current Short Haul Agreement and the Current Long Haul Agreement which enables Qantas, in agreement with the AIPA, to utilise a pilot at such times and under such conditions as any special circumstances may require. These provisions confer a capacity on the AIPA to consent to Qantas’s utilisation of pilots for functions outside their normal roles, at such times and under such conditions as special circumstances require.

[227] The protection of these provisions for pilots is valuable. They provide a limit on the directions Qantas can issue to pilots for the performance of work. The provisions also have a “green light” function: they provide a flexibility to ensure that services continue to operate, and that passengers and aircraft are not stranded when unforeseen events arise.

[228] No other organisation has the role that the AIPA has under these provisions. There is no similar provision under the FW Act.

[229] Initial allocations of Second Officers: as mentioned above, all new pilots who join Qantas commence in the role of Second Officer under Training. On completion of their training they become Second Officers and are allocated to one of the aircraft covered by the Current Long Haul Agreement. Prior to the commencement of the Current Long Haul Agreement, Qantas had a general discretion as to which aircraft to allocate new pilots to. Working on some aircraft which are higher rated is more lucrative than others which are lower rated.

[230] Clause 19.1.2 of the Current Long Haul Agreement provides:

“Upon completion of training, a SOT will be allocated by the Company to the B787, A330 or A330/A350 SFF aircraft rather than the B747 and A380 aircraft unless there are insufficient bids from suitably qualified pilots employed prior to the commencement of clause 32.7, or otherwise agreed with the Association for operational reasons. The Association will not unreasonably withhold agreement.”

[231] The provision provides a mechanism for the AIPA to minimise any unfairness to pilots based on which aircraft they are initially allocated to, while at the same time providing Qantas with a pressure valve to ensure that it is not operationally impacted. The effect of the AIPA agreeing to an allocation to a higher rated aircraft is that more senior pilots, who may have wished to bid for a transfer to that position, will be deprived of the chance to do so.

[232] No other organisation has any role under the provision. There is no comparable provision of the FW Act.

[233] Demotions: a Qantas pilot may be demoted for a number of reasons, including as part of a reduction in numbers of pilots, as a form of disciplinary action, or as a result of poor operational proficiency. A demotion involves a loss of remuneration. Under the Current Long Haul Agreement, clause 17.7.3 provides that where a pilot is being considered for a demotion on the basis of his or her operational suitability, a Demotions Committee will be established comprising four representatives from Qantas’s flight operations division (one of whom will act as chairperson) and four members appointed by the AIPA. The clause also provides that the pilot being considered for demotion may make written representations for consideration at the meeting of the Demotions Committee and the findings of the Demotions Committee will be provided to Qantas’s Chief Pilot who will decide the outcome of the case.

[234] The pilots nominated by the AIPA to sit on the Demotions Committee are not representatives of the pilot. The clause requires that they be senior training pilots. The AIPA and pilots recognise that there will be circumstances where pilots are not operationally suitable to a particular level of responsibility, and that demotion will be appropriate. The AIPA nominees for the Demotions Committee are not advocates for the pilots, but rather ensure that the process is fair, thorough and the right outcome is achieved.

[235] No other organisation has the role that the AIPA has under this provision. There is no corresponding provision provided by the FW Act.

[236] Promotions and the Pilot Assessment Committee: seniority is the primary determinant of who is entitled to be awarded a promotional or other vacancy at Qantas. However, only pilots who are deemed as “operationally suitable” for promotional training are able to access those vacancies within their seniority. A short haul or long haul pilot who is identified as not “operationally suitable” for promotional training may seek a review by the Pilot Assessment Committee, which is comprised of three members nominated by Qantas and three members nominated by the AIPA. The Pilots Assessment Committee assesses relevant factors such as the pilot’s flying experience, qualifications and operational suitability for the promotional training in question. Under the Pilot Assessment Committee process, where there is a three-three split, the pilot is deemed to be operationally suitable, and is able to undertake the training for the promotional position.

[237] Captain Beavan gave evidence, which I accept, that the role of seniority in promotion at Qantas ensures that the longest serving pilots with the most experience are given promotional opportunities over their junior colleagues; it also creates a transparent selection criteria that eliminates the possibility that a more favoured or more popular junior pilot will be selected for promotional opportunities over a senior pilot.

[238] The provision is aimed at ensuring that pilots are selected for promotional training opportunities on their merit. This is important in circumstances where promotion can involve a substantial increase in responsibility. Not all pilots are suitable to be promoted to the position of Captain.

[239] No other organisation has the role that the AIPA has under this provision. There is no corresponding provision provided by the FW Act.

[240] Base transfers on compassionate grounds: pursuant to both the Current Short Haul Agreement and the Current Long Haul Agreement, a pilot is allocated to a category (i.e. a rank, on an aircraft type) at a base. In general terms, a pilot can only change from this allocation by bidding for a vacant position, or, where there is a surplus of pilots in that category at that base, through the reduction in numbers process. Both enterprise agreements contain a provision that permits Qantas and the AIPA to agree to provide a special dispensation on compassionate grounds permitting a pilot to change base. This is a “green light” provision that permits, by agreement, something that would otherwise be prohibited.

[241] The AIPA’s role under the provisions is to balance the interests of a pilot who has a case for transfer on compassionate grounds with the interests of other pilots who will be disadvantaged by the allocation of a position to a pilot other than by seniority.

[242] No other organisation has such a right under the applicable enterprise agreements. There is no corresponding right in the FW Act.

[243] Class of travel for paxing: under both the Current Short Haul Agreement and the Current Long Haul Agreement, a pilot is provided with travel to either get to a destination from which they will operate or to return from a location to their base on an aircraft which they are not operating. This is known as “deadheading” or “paxing”. For example, a long haul pilot may be flown to London to operate an aircraft back to Australia. The enterprise agreements provide general rules as to the class of travel to which pilots must be allocated while paxing. The rules depend on the length of the trip, the period the pilot will have prior to operating, and the status of the pilot.

[244] Under the Current Long Haul Agreement, clause 31.5 permits Qantas and the AIPA to permit a pilot to be required to pax in excess of the prescribed period in a particular class of travel which is inferior to that which would normally be required. This is a flexibility provision which permits Qantas, with the agreement of the AIPA, to do what would otherwise be contrary to the applicable enterprise agreement.

[245] No other organisation has the role that the AIPA has under this provision. There is no analogous provision in the FW Act.

[246] Selection of accommodation: under clause 29 of the Current Long Haul Agreement, Qantas and the AIPA can agree to (a) vary or waive some of the accommodation requirements stipulated in the provision for pilots while travelling for work or (b) select new accommodation. In the event of a disagreement between the AIPA and Qantas, the AIPA can escalate the dispute to a Board of Appeal for resolution.

[247] The provision ensures that Qantas cannot unilaterally change an agreed accommodation to the pilots’ detriment and that where such a change is sought, for whatever reason, the AIPA is consulted and agrees to the change. The role of the AIPA includes inspecting the hotel in question to determine whether the accommodation meets the needs of pilots whilst away on duty.

[248] No other organisation has the role that the AIPA has under this provision. There is no analogous provision in the FW Act.

[249] New aircraft or equipment: clause 42 of the Current Long Haul Agreement deals with the introduction of new equipment or aircraft into the Qantas fleet. It provides:

“42.1 Conference to Consider changes to pay, rules and working conditions for new aircraft or equipment

At least six (6) months before training of pilots for a new type of aircraft or equipment for use on aircraft on the Company's commercial operations is to commence, either the Company or the Association may request a conference with the other party to consider whether or not any changes to the provisions in this Agreement should be made in relation to the new aircraft type or equipment. The conference will begin within 30 days after the request for a conference has been made, unless otherwise mutually agreed between the parties.

42.2 When any agreed changes to this Agreement apply

Any agreed changes to this Agreement will apply from the date the aircraft or equipment is first placed in commercial service.

42.3 Pilots will operate new aircraft or equipment when declared airworthy for a minimum period of three (3) months even i f agreement not reached on pay and conditions

Pilots will operate new aircraft or equipment on the Company's scheduled and non-scheduled operations at such time as the aircraft or equipment is declared airworthy by the aviation regulatory authority whether or not rates of pay, rules and working conditions for the aircraft or equipment have been agreed but this obligation will not continue if rates of pay, rules and working conditions have not been agreed upon within a period of three (3) months after the new aircraft or equipment has been placed in service by the Company.”

[250] The provision is concerned with how work is done, the remuneration for such work, and the conditions which govern the performance of that work. If Qantas were to invest heavily in a new aircraft, the effect of clause 42 is that unless agreement is reached with the AIPA about the working conditions of pilots on that new aircraft, then the aircraft will not be able to continue to operate after a three month period.

[251] No other organisation has the role that the AIPA has under this provision. There is no analogous provision in the FW Act.

[252] Accident and incidents: whenever there is an accident or incident involving an aircraft, Qantas conducts an investigation. The investigation may identify pilot error, or may identify other causes, including issues with widespread application.

[253] Clause 45 of the Current Long Haul Agreement provides:

“45 Accident and Incident Investigation

45.1 Association's right to be represented during an investigation into any accident or incident

The Association has the right to nominate a representative to act as an observer and be present at all stages of a Company's investigation into any accident or incident.

45.2 Association's report to form part of final report of investigating board

The Association’s representative has the right to submit a report on the investigation which will form part of the final report of the investigating board.”

[254] Clause 54 of the Current Short Haul Agreement provides:

“54 Accidents and incidents

54.1 Notwithstanding anything contained in this Agreement to the contrary, the Company may elect to hold a pilot out of service with pay during an investigation into an accident or incident in which he or she may have been involved.

54.2 A pilot who is involved in, or questioned in relation to, an accident or incident will be entitled to be represented and assisted at all times by a designated Association representative and/or by fellow pilots of his or her choice.

54.3 For the purpose of assisting a pilot in any investigation, the Association will have the right to nominate representatives who will act as observers and be present at all stages of a Company investigation into an accident or incident. The Association’s representative will have the right to submit a report on the investigation that will form part of the final report of the investigating board.”

[255] The role of the AIPA’s representative in the investigation, including the submission of a report by the AIPA’s representative which will form part of the final report of the investigating board, is significant. It provides a mechanism to ensure that any concerns that have led to the accident or incident are raised, considered and the subject of a published report. The AIPA’s role also ensures a level of integrity in the process, and fosters a substantial degree of trust.

[256] I agree with the AIPA’s submission that the AIPA’s observer role under these provisions involves representation of the interests of all pilots. 56

[257] No other organisation has the role that the AIPA has under this provision. There is no analogous provision in the FW Act.

[258] I accept that the rights conferred on the AIPA by the Current Short Haul Agreement and the Current Long Haul Agreement have the following features:

•  they are rights. They can be enforced in courts and the Commission. They are not discretionary benefits that can be granted or refused;

•  they each confer exclusive rights on the AIPA. The AFAP will not have these rights for at least so long as the Current Short Haul Agreement and the Current Long Haul Agreement remain in operation;

•  they each concern important, and in many cases fundamental, conditions of employment. They govern matters as fundamental as to who does what work, where, when and how;

•  they confer valuable rights on the AIPA. They place the AIPA in a position of power; and

•  the purpose of the rights is to protect the pilots covered by the applicable enterprise agreements against decisions which may otherwise be made by Qantas contrary to their interests.

[259] The AIPA contends that these rights permit it to perform the core functions of a union in a more effective manner than can be performed by an organisation without those rights.

[260] In my opinion, when considering the role of the AIPA in connection with these rights it is important to separate out (a) the role the AIPA plays in exercising its rights and undertaking its duties under the applicable provisions of the enterprise agreements from (b) any role the AIPA may play in representing one or more pilots (who are members of the AIPA) in relation to the provision or the subject matter with which it is concerned. As to the former, regardless of whether an AIPA member is involved or affected, the AIPA is obliged by the relevant provisions of the enterprise agreements to undertake a particular task or action, or consider agreeing or disagreeing to a particular proposal. For example, clause RM9 of the Current Long Haul Agreement requires the AIPA to audit the rosters for all long haul pilots, including by correcting errors and dealing with issues they identify, and participate in a process to resolve disputes about rosters, including by potentially escalating the issue to a Board of Appeal and nominating a person to sit on that Board of Appeal. When the AIPA exercises its rights and undertakes its duties in accordance with clause RM9, it is doing so because those rights and duties are conferred and imposed on it under the Current Long Haul Agreement and it must carry out those tasks in relation to all pilots covered by the Current Long Haul Agreement. The AIPA could not, for example, refuse to analyse and assess the roster for a particular pilot who was not a member of the AIPA. The AIPA is not acting in its capacity as a representative of one or more of its members when it exercises its rights and undertakes its duties under such provisions. By way of a further examples:

•  clause RM4.1 of the Current Long Haul Agreement gives the AIPA the right to agree or disagree with a proposed change to the computer programs which Qantas uses to group patterns of flying into pattern lines. In doing so, the AIPA performs, on behalf of all Qantas long haul pilots, a “green light” function in that it permits beneficial amendments and a “red light” function in that it prevents detrimental changes; and

•  the applicable enterprise agreements at Qantas give the AIPA the role of nominating three of six members of a Pilot Assessment Committee to determine whether a pilot is deemed as “operationally suitable” to be given a promotional training opportunity. Under the Pilot Assessment Committee process, the pilot is deemed to be operationally suitable if there is a three-three split amongst members of the Pilot Assessment Committee, and the pilot is then able to undertake the training for the promotional position. When the AIPA nominates three suitable pilots to sit on the Pilot Assessment Committee and those nominees sit on that committee, they do so in their capacity as representatives of all long haul Qantas pilots. The Pilots Assessment Committee assesses relevant factors such as the pilot’s flying experience, qualifications and operational suitability for the promotional training in question. As the AIPA correctly submits, the provision is aimed at ensuring that all pilots are selected for promotional training opportunities on their merit, which is important in circumstances where promotion can involve a substantial increase in responsibility.

[261] The AIPA performs these functions under the enterprise agreements on behalf of the group of Qantas pilots covered by the applicable enterprise agreement as a whole, not in its capacity as a representative of one or more of its members.

[262] As to its role as a representative of one or more pilots in connection with a particular issue or dispute, the AIPA may be called on to provide guidance, assistance, advice and/or advocacy to any of its pilots who are involved in, or affected by, the matter.

[263] In my view, given the AIPA’s long history and experience with Qantas, including exercising its rights and duties under the relevant provisions of the applicable enterprise agreements and representing its members in matters and disputes with Qantas under the applicable enterprise agreements or Qantas’s policies, customs or practices, if this application is granted the AIPA will have an advantage over the AFAP, at least for an initial period, in representing Qantas pilots in particular matters and disputes. The AIPA will have such an advantage because it knows and understands, from long experience, both the relevant provision, requirement or rule in the applicable enterprise agreement, policy, custom or practice within Qantas’s somewhat unique business and, more importantly, how such issues have been resolved in the past and what factors were influential in resolving the issue by agreement with Qantas, by determination on the part of the AIPA (when it has such a right), or by persuading a third party such as a Board of Appeal to determine the matter in a particular manner.

[264] For example, in a dispute concerning the introduction of a new or amended computer program for pattern line construction for Qantas’s long haul pilots, the AIPA knows the current computer programs and their current features (because they were, according to clause RM4.1, “agreed between the parties” and “identified to” the AIPA) and knows, from experience, how any such disputes or previous proposals to amend the computer programs have been resolved in the past and what factors were, or were likely to have been, influential in reaching agreement on their current design or in resolving any such disputes one way or another. Further, the provision requires Qantas, on request, to make available to the AIPA “the specifications and such program information as is possible, subject to any copyright or other similar limitation which may be imposed on” Qantas.

[265] I am satisfied on the evidence that the AFAP has the capacity and experience to provide effective representation to one or more of its members in connection with a dispute with Qantas concerning a new or amended computer program for pattern line construction for long haul pilots. It is clear that the AFAP has experience in representing its members in rostering and pattern lines with a range of airlines, including international airlines such as Jetstar and Virgin, and the AFAP has the capacity to be able to obtain relevant information from people (such as Captain Perry McNeil, a former AIPA scheduler) with knowledge about rostering within Qantas. The AFAP could lobby, or make submissions to, the AIPA and/or Qantas in relation to such a dispute which could, for example, involve an issue as to whether Qantas’s computer programs group patterns of flying into pattern lines and allocated patterns “in accordance with Aviation Regulatory Authority requirements” within the meaning of clause RM4.1. Further, if there remains a dispute after the relevant decision has been made, the AFAP may, depending on the nature of the dispute, be able to invoke the disputes procedure in the enterprise agreement and, if appropriate, represent its member(s) in an arbitration before the Commission. It is significant, however, that, unlike the AIPA, the AFAP does not have a right under the Current Long Haul Agreement to require Qantas to provide it with the specifications and other relevant information in relation to the computer programs. Nor does the AFAP have the same experience as the AIPA in reaching agreement on the current computer programs for pattern line construction for long haul pilots. It will, in my view, take some time and experience in dealing with such disputes with Qantas before the AFAP may be able to be as effective as the AIPA in representing long haul Qantas pilots in such disputes.

[266] The significant number of important rights and duties conferred and imposed on the AIPA by the applicable enterprise agreements, together with the experience the AIPA has in exercising those rights, undertaking those duties, representing Qantas pilots, and dealing with Qantas in general, puts the AIPA in a more advantageous position in relation to representation than is usually the case for an incumbent union objecting to the alteration of another union’s coverage rules. This representational advantage which the AIPA has extends to a whole range of matters and disputes, including rostering and scheduling, investigations into accidents and incidents, demotions, promotions, base transfers, and proposals by Qantas to introduce material changes in the workplace.

[267] I accept that the enterprise agreements which the AIPA has negotiated with Qantas to cover its short haul pilots and its long haul pilots are the “gold standard”. Those terms and conditions of employment are superior to those enjoyed by pilots in other Qantas operations, and in other Australian airlines. The AIPA has performed well in negotiating these terms and conditions of employment with Qantas. But the existence of such favourable terms and conditions of employment for Qantas pilots does not, in my view, establish that the AIPA is the “better organisation” for the Class or any part of it. The nature and quality of terms and conditions of employment which can be negotiated by or on behalf of employees with a particular employer is dependent on a range of factors, including the nature, size and profitability of the employer and the industry in which it operates. Qantas is the market leader in the Australian airline industry and operates in a higher profit margin environment than lower cost airlines such as Jetstar. I am satisfied that if another competent and experienced union operating in the airline industry, such as the AFAP, had negotiated enterprise agreements with Qantas to cover its short haul and long haul pilots, the outcome achieved for pilots would have been comparable with that which AIPA has secured for Qantas’s pilots.

[268] I accept that there has been a close and strong relationship between Qantas and the AIPA for many years. The evidence demonstrates that the AIPA has been committed to working with Qantas to develop new opportunities and to expand the airline and its services. I do not accept the AFAP’s criticism that the AIPA has been too close to Qantas, and this has resulted in the AIPA being a less effective organisation to represent its members employed by Qantas. There are numerous examples in the evidence of the AIPA “taking on” Qantas in disputes, bargaining and litigation when the AIPA believes it is in the best interests of its members to do so. The fact that the AIPA has also been able to work closely, in a cooperative manner, with Qantas on other matters and projects demonstrates the level of maturity and mutual respect which exists between the AIPA and Qantas. In addition, I am not persuaded on the evidence that the transfer of past AIPA presidents or executive staff members to the Qantas management team or the transfer of Qantas staff, such as those within human resources or scheduling, to the staff of the AIPA has made the AIPA a less effective organisation. The movement of such staff from time to time is not surprising given the knowledge acquired by such employees over time and the cooperative working relationship between Qantas and the AIPA.

[269] I do not accept the contention that the AIPA’s personal relationships with various managers at Qantas will mean that it is more effective in its representation of Qantas pilots than the AFAP. First, there was no persuasive evidence as to how any relationship between an AIPA officer or employee and a Qantas manager has impacted the effectiveness of the AIPA’s representation of one or more of its members in the past. Secondly, the evidence demonstrates that a number of employees and members of the AFAP, such as Mr Lutton and Captain Bollen, already have their own relationships with senior Qantas managers. Thirdly, Qantas employees such as Mr Windsor gave evidence, which I accept, that Qantas managers are professionals, and they will deal with the AFAP in a professional manner and without a personal relationship being present.

[270] In bargaining for future enterprise agreements, the AFAP will be a bargaining representative and will have a statutory right to bargain on behalf of its members, as will the AIPA. Both organisations have extensive experience in negotiating enterprise agreements, developing and executing bargaining strategies, potentially taking protected industrial action, drafting provisions to be included in enterprise agreements, preparing documents in support or, or against, an application for approval of an enterprise agreement. The AFAP has an advantage in representing members in bargaining by reason of its extensive industry-wide experience. The AIPA has an advantage in representing members in bargaining by reason of its extensive experience in bargaining with Qantas. As to whether the AIPA will or will not in future rounds of enterprise bargaining be able to retain all of the exclusive rights it has under the current enterprise agreements at Qantas, that will not, in my opinion, have any material impact on the effectiveness of either the AIPA or the AFAP to represent their members in bargaining for a new enterprise agreement. Further, although I accept that it is not in the AIPA’s interests to relinquish or share any of these rights and the AIPA Committee of Management has recently passed a resolution confirming that the AIPA will oppose and object to the AFAP being granted any such rights under the applicable enterprise agreements, whether the AIPA will be able to retain the exclusive rights in subsequent rounds of bargaining will depend on a whole range of matters such as the number of members the AFAP has in Qantas at the time, the number of members the AIPA has in Qantas at the time, the relationship between the AFAP and the AIPA at the time, the approach and attitude of Qantas at the time, the nature and profitability of Qantas’s business at the time, and the nature of the aviation industry at the time. Those matters are not capable of being known at present. In addition, it is the relevant cohort of employees (short haul pilots or long haul pilots) who will vote on a new proposed enterprise agreement, not the AIPA. It is therefore not helpful to speculate about what might occur in relation to these matters in bargaining in 2023 or 2024.

[271] In respect of a claim for unpaid entitlements, the AFAP will have the same right to represent its members who are Qantas pilots as the AIPA does. In addition to having this right of representation, I accept that the AFAP has the same capacity as the AIPA to represent its members in a claim for unpaid entitlements. Both the AFAP and AIPA have experienced legal and industrial employees who can give effective advice and provide effective representation in relation to a claim for unpaid entitlements under an industrial instrument, contract or other source of obligation in the aviation industry. There are limited circumstances in which evidence of surrounding circumstances, such as what was said to employees during bargaining for an enterprise agreement, may aid in the task of properly construing a provision in an enterprise agreement in the context of a claim for unpaid entitlements. I am satisfied on the evidence that if such evidence is relevant to a particular claim for an entitlement, the AFAP has the capacity to obtain such evidence from one or more of its members who are, or were at the relevant time, Qantas pilots, or from documents in the possession, custody or control of Qantas, its employees or another bargaining representative.

[272] I accept the AIPA’s contention that its greater knowledge, compared to the AFAP, in relation to Qantas’s operations will, in particular matters or disputes, give it a representational advantage over the AFAP. But the weight to be attributed to this factor is diminished by the following considerations. First, Qantas pilots who are members of the AFAP have some knowledge of Qantas’s operations, albeit their knowledge on particular operations may not be as comprehensive as other long-term Qantas pilots given that the 65 current members of the AFAP who are Qantas pilots were employed by Qantas since about August 2016. The AFAP has the capacity to obtain operational information from its members who are employed by Qantas, to the extent that such information is relevant to some representational activity on the part of the AFAP. Secondly, the evidence demonstrates that the AFAP has members who are retired or redundant Qantas pilots (including long haul pilots) who have extensive experience in relation to Qantas’s operations and the way it conducts its business. The AFAP has the capacity to obtain relevant information from those members if such information would assist it to represent a member and the information is not available from other AFAP members or contacts. Thirdly, deeper knowledge of Qantas’s specific operations does not provide an automatic advantage when it comes to representation of one or more Qantas pilots. Much will depend on the nature of the issue and the operational matters relevant to it. For example, in a claim for unpaid entitlements, the outcome may depend solely or predominantly on the words in the applicable industrial instrument, contract or policy, and knowledge of operational matters may be of little or no relevance. In other particular matters or disputes, the AFAP’s extensive knowledge and experience in relation to operations in the aviation industry generally and other international airlines operating within it may be more important than the AIPA’s knowledge of Qantas’s operations, with the result that the AFAP may be able to more effectively represent the Qantas pilots than the AIPA in particular matters.

[273] In the event of a dismissal, both the AFAP and the AIPA have experienced advocates who will be able to provide effective advice and representation to a Qantas pilot in any dismissal-related litigation or dispute.

[274] I do not accept the AIPA’s contention that its high level of density among Qantas pilots demonstrates, or suggests, that it can more effectively represent Qantas pilots. The AIPA has just over 90% of Qantas pilots as members. In light of that level of density, I accept the AIPA’s submission that (assuming the application succeeds) when a Qantas pilot joins the AFAP it will probably mean that the pilot in question has ceased to be a member of the AIPA. Accordingly, consenting to the AFAP’s proposed rule change is likely to decrease the number of Qantas pilots who are members of the AIPA. However, it does not necessarily follow that consenting to the AFAP’s proposed rule change will decrease union density among the whole cohort of Qantas pilots. Having regard to the high current level of union density among Qantas’s pilots and for pilots in the aviation industry generally, I am of the opinion that consenting to the AFAP’s application is not likely to have a material impact on union density among Qantas pilots. Further, as the AIPA submits, correctly in my view, all other things being equal, the higher the level of unionisation (a) the greater the collective power of the employees and (b) the more authoritative and effective the voice of the employees in their discussions with management. If union density among Qantas pilots remains at a high level, as I expect it will, even though it will be spread between the AIPA, the AFAP, and, to a minor extent, the TWU, the collective power of the pilot cohort will remain strong and the voices of those pilots will remain authoritative and effective.

[275] I do not accept the AIPA’s contention that the AFAP is not serious about representing Qantas pilots. I accept Mr Lutton’s evidence that:

(a) for the last 20 years the AFAP has not recruited, sought to recruit, or represented any Qantas pilots;

(b) it was only in the course of preparing for these proceedings (but prior to their commencement) that the AFAP received legal advice to the effect that it was entitled, under its current rules, to have Qantas domestic pilots as members. Prior to receiving such legal advice, Mr Lutton understood that the AFAP did not have the right to represent Qantas pilots. Notwithstanding the receipt of that legal advice, the AFAP decided not to recruit Qantas domestic pilots until the Commission determined the present application and resolved the issue of eligibility. In my view, that was a reasonable position for the AFAP to adopt; and

(c) the AFAP agreed to allow about 65 pilots who were recruited by Qantas (from other Qantas group airlines) since about August 2016 to keep their membership of the AFAP so they could keep their loss of licence insurance through the MBF, but on the basis that the AFAP would not provide industrial representation to them. This is consistent with the AFAP’s position that it would not seek to actively recruit Qantas pilots until, and dependent on, the outcome of the present application.

[276] Further, although it has long been the position of the AFAP that ideally there should only be one pilots’ union in Australia, and ideally the AFAP, the AIPA and VIPA would merge, I am satisfied on the evidence that the AFAP does genuinely wish to represent Qantas pilots and its long term hope of a merger between the three unions will not impact adversely on its capacity or ability to represent Qantas pilots.

[277] Relevant to the convenience factor is the evidence by Mr Alley to the effect that Qantas respects freedom of choice of union and would accommodate that freedom, for example by allowing both the AFAP and the AIPA to address new pilots at inductions.

[278] Further to the convenience factor, it is relevant that having an AFAP membership would allow a Qantas pilot to retain their AFAP membership even if they leave Qantas and move to Virgin or another non-Qantas group airline. While in normal times the evidence establishes that such movement does not generally occur, the impact of COVID-19 on the aviation industry means that such movement may well occur in the future. I accept that this is a relatively minor point which provides the AFAP with a small advantage over the AIPA in terms of convenience.

[279] In my opinion, it is relevant to the convenience factor (but not the representation factor) that members of the AFAP (but not members of the AIPA or any other organisation) are able to purchase loss of licence insurance from the MBF. The MBF provides financial assistance to its members who have lost their Class One medical certificate and are thus unable to work as a pilot. The MBF was formed in 1961 by members of the AFAP in response to the spiralling cost of loss of licence insurance at the time. The MBF is a mutual benefit fund; it exists not for profit but for the benefit of members. It is run by pilots for pilots. The MBF is not controlled by the AFAP, although a pilot must be a member of the AFAP to purchase loss of licence insurance from the MBF. I accept Captain Harget’s unchallenged evidence that the level of cover offered by the MBF is the best value in the marketplace. Advantages of the MBF scheme include that the MBF is independent of Qantas, lump sum payments made under the scheme are tax free, and contributions to the scheme of up to $65,000 may be refunded after 20 years if a pilot has not made a claim by the time of their retirement. Also relevant is that all Qantas pilots have loss of licence insurance by virtue of the terms of the Current Short Haul Agreement or the Current Long Haul Agreement. This loss of licence insurance is provided by Qantas at no cost to the pilot. Unlike the loss of licence insurance provided by the MBF, the loss of licence insurance provided by Qantas is not an independent scheme. Notwithstanding the provision of such insurance to Qantas pilots, I accept Captain Harget’s evidence that the AFAP currently has a number of members employed by Qantas who also have MBF insurance, which demonstrates that there is some demand amongst Qantas pilots for “top-up” loss of licence insurance with the MBF. I am satisfied that the availability of such insurance from the MBF for AFAP members employed by Qantas is relevant to the convenience of pilots, in the sense that it is in their industrial interests 57 to have the opportunity to access such “top-up” insurance through an independent scheme operated by the MBF. It weighs in favour of the AFAP’s contention concerning the convenience of a Qantas pilot belonging to the AFAP rather than the AIPA, but the weight to be attributed to this matter is far less than would have been the case had Qantas not already provided loss of licence insurance to its pilots, at no cost to them.

[280] The AIPA contends that it would be more convenient for Qantas pilots to continue their membership with the AIPA, partly because the AIPA has a range of their records and it takes some effort to join the AFAP. No evidence was adduced concerning any particular difficulty or effort which would be required for a Qantas pilot to join the AFAP or obtain any relevant records from the AIPA. In an era of information technology and in the absence of any persuasive evidence on the topic, I am not satisfied that it would involve any significant effort for a Qantas pilot to leave the AIPA, join the AFAP, and obtain records from the AIPA, if needed. In my assessment, this factor weighs slightly in favour of the AIPA in terms of convenience for Qantas’s pilots, most of whom are members of the AIPA.

[281] I have identified, assessed and weighed a range of matters that give each organisation (the AFAP and the AIPA) a competitive advantage over the other in evaluating which is the “better organisation” for Qantas pilots. Those advantages principally arise, respectively, from the AFAP’s extensive experience representing pilots across the whole of the aviation industry and the AIPA’s extensive experience, as the incumbent union, representing Qantas pilots and exercising its rights and undertaking its duties under the applicable Qantas enterprise agreements and their predecessors. In all the circumstances, I find that, as at the date this application is determined:

•  all Qantas pilots could conveniently belong to the AIPA or the AFAP. However, I am not persuaded on the evidence that any Qantas pilots could more conveniently belong to the AIPA (or any other organisation) than the AFAP; and

•  the AIPA and the AFAP would effectively represent Qantas pilots. However, I am not persuaded on the evidence that the AIPA (or any other organisation) would more effectively represent any Qantas pilots than the AFAP.

[282] As to the part time pilots who fall within the Class, no evidence was adduced of pilots flying on a part time basis, although Mr Lutton gave evidence that he thought such pilots might exist. If they do exist, I accept that they would most likely be found in helicopter flying, tourist flying, and other small operations, rather than in a major airline. No evidence was led by the AIPA to seek to demonstrate that it would have any advantage in representing part time pilots in any Qantas group airline (other than Qantas) or in the convenience of such pilots joining the AFAP. In all the circumstances, I am satisfied that the AFAP and the AIPA could effectively represent such pilots and such pilots could conveniently belong to either union; I am also satisfied that the AIPA would not more effectively represent those pilots nor could they more conveniently belong to the AIPA than the AFAP.

[283] I do not accept the AIPA’s contention that it would be a “better organisation” than the AFAP for Qantas’s part time pilots. My reasons for rejecting that contention are the same as have been provided in respect of Qantas’s full time pilots. In my opinion, the AFAP would be just as good an organisation as the AIPA for Qantas’s part time pilots.

[284] As to the independent contractors who fall within the Class, the only potential “better organisation” is the TWU. Having regard to the fact that the TWU did not file or adduce any evidence in the proceedings, I am satisfied that there is no proper basis to find that the TWU would be a “better organisation” than the AFAP for independent contractor pilots.

Conclusion re a “better organisation”

[285] In all the circumstances and for the reasons given, in my opinion, there is not, as at the date this application is determined, an organisation other than the AFAP to which any pilots in the Class could more conveniently belong and that would more effectively represent those persons. Accordingly, the s 158(4) condition is not satisfied with respect to any pilots in the Class.

Undertaking to avoid demarcation disputes (s 154(5))

[286] I have not formed an opinion that there is another organisation to which the relevant group of employees could more conveniently belong or that would more effectively represent the employees. Ergo, there is no basis to consider any undertaking pursuant to s 154(5) of the RO Act.

Would the proposed alteration contravene an agreement or understanding (s 158(6))?

[287] I am satisfied that there are no relevant agreements or understandings to which the AFAP is a party and that deal with its right to represent the industrial interests of a particular class or group of persons. All that exists is a unilateral practice, by the AFAP, whereby it has not sought, for many years, to recruit Qantas pilots, save that the AFAP has, since about August 2016, allowed a relatively small number of Qantas pilots to retain their membership of the AFAP in the limited circumstances explained by Mr Lutton in his evidence. In those circumstances, s 158(6) of the RO Act is not engaged.

Would the proposed alteration change the effect of any order made under s 133 (s 158(7))?

[288] No s 133 order made by the Commission exists. Nothing arises for consideration under s 158(7) of the RO Act.

[289] I will address the demarcation orders made by SDP Hancock in 1995 and 1996 when I consider matters relevant to the general discretion under s 158 of the RO Act. Those orders were not made under s 133 of the RO Act.

Discretionary considerations

[290] Provided the mandatory grounds for refusing an application for consent to a rule change are not engaged, the Commission has a general discretion to consent to, or refuse, the application. 58

[291] Where I have already addressed a discretionary consideration above, I will not repeat it here. I will take into account all relevant discretionary considerations in deciding whether or not to consent to the proposed alteration, in whole or part, under s 158 of the RO Act.

Benefits to the Class of consenting to the application

[292] I accept Captain Bollen’s evidence, given in the context of competition between pilots’ unions at Jetstar since 2008, that such competition has “kept the AFAP on their toes and honest … because there’s an alternative for the pilot members, if one union, i.e. the AFAP, is not doing a good job, they could move to another union. So, it really motivates the AFAP representatives, as an organisation, to do a good job for the Jetstar members, to advocate on their behalf to try and improve their lot”. 59 Consenting to the present application by the AFAP will, in my view, have a similar effect on the AIPA and the AFAP in terms of the quality of services they provide to pilots in the Class.

[293] The AFAP is well placed to offer competition and choice for pilots in the Class, in that the evidence establishes that the AFAP is a well-run and effective pilots’ union. I do not accept the contention that Qantas pilots already have available to them a choice to join another effective union for pilots, namely the TWU. I accept Captain Bevan’s evidence that (a) the TWU does not have any international pilot members employed at Qantas, (b) he has never competed with the TWU, (c) he has not seen the TWU actively entering bargaining or the like, and (d) he is not aware of the TWU having had any involvement with pilots in the Class. There is no evidence of the TWU’s resources, staffing, structures or capacity to represent pilots in the Class, save for Mr Lutton’s estimation that the TWU has about 20 member pilots employed by Qantas and the total number of TWU pilot members to be less than 200. 60

[294] I accept the hearsay evidence given by Mr Lutton 61 and Captain Bollen62 that there are a number of Qantas pilots who would join the AFAP if the AFAP had coverage over Qantas pilots. This evidence is supported by the fact that about 65 members of the AFAP have elected to remain members of the AFAP since they were recruited by Qantas from other Qantas group airlines.

[295] On the basis of the evidence adduced in these proceedings, I do not accept the AFAP’s contention that there is any significant dissatisfaction among AIPA’s members with the leadership of the AIPA. First, there has been no material exodus of members from the AIPA to the TWU or to become union-free employees. In the period from 19 March 2020 to 12 November 2020, there were 12 resignations from the AIPA. The reasons for their resignations included financial difficulties, retirements, leave without pay, as well as five pilots who were disappointed with the AIPA’s response to Qantas’s actions during the pandemic, particularly Qantas’s decision not to offer voluntary redundancy to pilots aged 63 and over. In the same period (19 March 2020 to 12 November 2020), the AIPA gained 17 new pilot members in Qantas mainline. 63 Secondly, there will always be different views amongst a large group of educated members, such as pilots who are members of the AIPA, in relation to matters such as bargaining strategy. In that context, it is not surprising that a relatively small group (33) of AIPA members called for a Special General Meeting in relation to the AIPA’s bargaining with Qantas and Captain Smith proposed motions seeking to ensure that members received information about bargaining from persons other than Executive members. In addition, I am not persuaded on the evidence that the fact that a recent “change ticket” won 15 out of 20 seats on the AIPA Committee of Management demonstrates any significant dissatisfaction with the AIPA leadership or poor performance on the part of the AIPA leadership team. The evidence establishes that the AIPA has been successful, over a long period of time, in negotiating “gold standard” enterprise agreements (from the perspective of employees) with Qantas and working with Qantas in a cooperative and effective manner for the benefit of both Qantas pilots and Qantas.

[296] The existence of a desire on the part of at least some Qantas pilots to join the AFAP - a well-run and effective pilots’ union - coupled with the benefits which competition and choice will provide to Qantas pilots, are discretionary factors which weigh in favour of consenting to the proposed rule change.

Effect on the AIPA

[297] The AIPA contends that allowing the application will cause it to have an “existential crisis”. I do not accept that contention. The AIPA has just over 90% of Qantas pilots as members. Any Qantas pilot who joins the AFAP is likely to be a pilot who has ceased their membership of the AIPA in order to join the AFAP. It follows that consenting to the AFAP’s application will almost certainly reduce the number of Qantas pilots the AIPA has as members and thereby decrease its revenue. However, the AIPA is an effective and experienced pilots’ union, and it is likely to retain many Qantas members; its extinction is unlikely. To that end, Captain Bevan gave evidence, which I accept, that he believed the AIPA “would be able to compete quite well” with the AFAP. 64

Effect on pilot collective power

[298] It is contended that consenting to the application would diminish Qantas’s international pilots’ collective power, to their detriment. I do not accept this argument. The entry of the AFAP into the market for Qantas pilots as members is not likely, in my view, to reduce the collective power of the unionised pilots. I have formed that opinion for the following reasons.

[299] First, the AFAP has over 90% coverage in both Eastern and Sunstate. 65 Both the AIPA and the TWU also have member pilots employed by Eastern and Sunstate.66 At the time the AIPA Rules Case was heard by SDP Kaufman in 2007, the AFAP had 82% coverage of pilots in Eastern and 90% coverage of pilots in Sunstate.67 It is apparent from this analysis that following the amendment to the AIPA’s rules to permit it to have member pilots employed by Qantas group airlines such as Eastern and Sunstate, union density increased at Eastern and remained roughly the same at Sunstate. As was the case in Sunstate and Eastern, I consider it likely that union density among Qantas pilots will remain fairly constant, and is unlikely to decrease by any significant number, if the AFAP’s rules are amended to permit it to have Qantas pilots as members. Maintaining a high level of union density usually results in strong collective power for the unionised group of employees.

[300] Secondly, the existence of a second active union, the AFAP, for Qantas pilots is unlikely to reduce the collective power of the unionised pilots. To the contrary, I am of the opinion that the introduction of an active, well-resourced pilots’ union with extensive industry-wide experience (the AFAP) for Qantas pilots to join will increase the collective power of unionised pilots at Qantas. The AFAP will be able to bring its extensive experience from across the aviation sector to the table, in conjunction with the deep experience the AIPA has in negotiating and dealing with Qantas, to enhance the collective power of unionised pilots at Qantas.

[301] Thirdly, I accept it is possible that there could be disputation between the AIPA and the AFAP which may diminish the collective power of the unionised pilots at Qantas. There is also the prospect that Qantas could seek to “play off” one union against the other and thereby diminish the collective power of the whole group of unionised pilots at Qantas. However, I do not consider that either of those outcomes is likely. Ultimately those pilots, as members of the AIPA or AFAP (or the TWU), will be keen to ensure that their unions act in their best interests and do not permit any disputes between the unions or tactics adopted by Qantas to cause them any material detriment. Any union leader who puts their own self-interest or the interests of their union over the interests of the members they represent, particularly educated, experienced and long-term union members such as most of the Qantas pilots, is likely to be removed from office or not have their proposals endorsed by the governing bodies within the union. Further, the AFAP and the AIPA have proven themselves to be able to work together constructively, and without damaging disputation, at Jetstar and other Qantas group airlines, for many years. On the two occasions over the last 13 years in which there has been a disagreement between the two unions, the differences have not resulted in any material damage. Both organisations were able to move on from the disagreements and focus on their task of acting in the best interests of their members. It is also relevant that the AFAP is by no means a militant union which cannot tolerate competition or co-existence with other unions; it has worked peaceably with VIPA and the TWU for a number of years.

Harm to pilot conditions

[302] The AIPA submits that granting this application would harm pilots’ enjoyment of their conditions under the Current Long Haul Agreement (as committees become unworkable, etc) and raise the serious prospect that pilot conditions will be lost in the next enterprise agreement, or the one after that. I do not accept that either of these things is likely to occur. The AIPA’s rights under the Current Long Haul Agreement to have its nominees sit on various committees and make various decisions will not change by reason of an amendment to the AFAP’s rules. Those exclusive rights will remain in place for at least so long as the Current Long Haul Agreement remains in operation. I have already expressed the opinion that it is very difficult to speculate on what will happen in the next round of bargaining negotiations, or the one after that. I am, however, confident that Qantas’s pilots will be keen to ensure that the rights and protections they have bargained for over a significant period of time are not diminished in future rounds of bargaining.

AIPA’s arguments re objects of the FW Act and the RO Act

[303] The AIPA submits that if the application is granted, it will remain opposed to the conferral on the AFAP of the rights the AIPA currently enjoys under the Qantas enterprise agreements, but will comply with the requirements of the FW Act about the bargaining process. As a consequence, it is contended that the AFAP will remain in its less important subsidiary position. This will lead, so the AIPA submits, to the establishment of a two tier system of employment within Qantas – with one organisation and its members having a superior set of rights. The AIPA submits that one of the matters relevant to the general discretion is the purpose of enhancing relations within workplaces between federal system employers and federal system employees. The purposes of the federal scheme (s 3 of the FW Act) include providing a framework for cooperative and productive workplace relations and achieving productivity and fairness through an emphasis on enterprise level collective bargaining. The AIPA contends that the establishment of a two tier system would not promote fairness.

[304] It is correct that the AFAP will not have the same rights as the AIPA has under the current enterprise agreements at Qantas, for at least so long as those enterprise agreements remain in operation. Whether the AIPA will be able to retain all of its exclusive rights in the next round of bargaining, or the one after that, is too speculative to assess for the reasons discussed above. But even assuming that the AIPA will retain all of its exclusive rights for a considerable period of time, I do not accept that consenting to the AFAP’s application would be contrary to, or inconsistent with, the objects of the FW Act or the RO Act. The overall objective of the FW Act is to “provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians”. 68 One of the ways this objective may be met is by “achieving productivity and fairness through an emphasis on enterprise-level collective bargaining underpinned by simple good faith bargaining obligations and clear rules governing industrial action”.69 For the reasons already given, I do not consider that the continuation of the AIPA’s exclusive rights under the applicable enterprise agreements at Qantas will be likely to have any material impact on the provision of a balanced framework for cooperative and productive workplace relations at Qantas’s workplace. Further, all Qantas pilots have a shared interest in maintaining and improving the conditions under which they perform work. I am confident that both the AIPA and the AFAP will act in the best interests of their members to achieve this shared interest, including by acting in a cooperative and productive manner. I am also confident that there will continue to be an emphasis on enterprise-level collective bargaining, underpinned by the parties’ respective good faith bargaining obligations, at Qantas, with the objective of achieving productivity and fairness for all parties concerned.

[305] The AIPA also submits that one of the matters relevant to the general discretion is that Parliament “recognises and respects the role of employee organisations in facilitating the operation of the workplace relations system”. 70 That is the system established by the FW Act. The AIPA contends that the role of an organisation under the system established by the FW Act includes entering into and enforcing enterprise agreements and the benefits in them, thereby enhancing employment conditions of employees and ensuring that they are enjoyed. The AIPA contends that establishing a system in which the AFAP is reduced by operation of the enmeshment provisions to a subordinate role is contrary to that object. I do not accept this argument. The AFAP will be a bargaining representative for its members in the next round of bargaining relating to the Current Short Haul Agreement and the Current Long Haul Agreement. The fact that the AFAP does not currently have the exclusive rights and duties conferred and imposed on the AIPA by those current agreements will not change the status of the AFAP as a bargaining representative in the next round of bargaining, nor will it, in my opinion, have any material impact on the effectiveness of the AFAP as either a bargaining representative for its members or as a representative of one or more members seeking to ensure the benefits of the current enterprise agreements are enjoyed by pursuing a claim for an unpaid entitlement under those instruments.

[306] Parliament’s intention in enacting the RO Act was to “enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation”. 71 For the reasons already given, I do not believe that consenting to the AFAP’s proposed rule change will give rise to any material increase or decrease in industrial disputation at Qantas. As to enhancing relations between Qantas and its pilots, giving those pilots who wish to join the AFAP the ability to do so will, in my view:

•  enhance the relations between those pilots and Qantas, because they will be represented by an experienced and effective union of their choice; and

•  not have a material impact on the relations between the pilots who remain members of the AIPA, another experienced and effective pilots’ union, and Qantas, or the relations between the (relatively few) non-union Qantas pilots and Qantas.

Assumptions as to coverage of Qantas pilots

[307] A relevant discretionary consideration is whether the application should be refused because it will upset the AIPA’s assumption, following the demarcation orders made by SDP Hancock in 1995 and 1996, that the AFAP would not ever enter, or seek to enter, Qantas’s business, whether in domestic or international flying.

[308] I am not persuaded by the evidence that the AIPA has suffered any material detriment by reason of its assumption that the AFAP would remain out of Qantas’s business. The absence of any such material detriment tells against giving this factor any significant weight.

Has the AFAP been “lazy”?

[309] The AIPA submits that the AFAP’s “laziness” in not actively enrolling Qantas domestic pilots weighs against the exercise of a discretion to consent to the proposed rule change.

[310] For the reasons given in paragraph [275] above, I have found that it was reasonable in the circumstances for the AFAP to wait until this application is heard and determined by the Commission before recruiting Qantas pilots as members. I therefore do not accept that the AFAP has been “lazy” in not actively enrolling or representing Qantas pilots. I consider this to be a neutral consideration.

Disadvantages for Qantas

[311] Qantas contends that amending the AFAP’s rules to permit it to have Qantas pilots as members would mean that Qantas would have to consult with an additional union, thereby introducing complexity in its business and slowing down its decision making. I do not accept that this weighs against exercising a discretion to consent to the AFAP’s proposed change to its rules.

[312] First, in respect of matters where the AFAP is obliged to consult with both the AFAP and the AIPA because, for example, members of both organisations are affected by a proposal or decision which Qantas wishes to make, Qantas may be able to organise a consultation meeting at which representatives of both the AFAP and the AIPA can attend. If such a joint consultation meeting cannot be organised, holding separate consultation meetings with each of the AFAP and the AIPA is unlikely to cause a significant delay to the making of a decision by Qantas.

[313] Secondly, Qantas is a large and well-resourced organisation. It will, no doubt, have the resources required to ensure that consultation meetings are organised and held within reasonable periods of time, so that decisions can be made in a timely manner. Mr Alley did not suggest that holding additional consultation meetings with the AFAP would be incompatible with Qantas running a profitable business.

[314] Thirdly, having regard to the focus in the FW Act on freedom of association, I agree with the AFAP’s submission that the Commission should be slow to accept disadvantage to an employer as a proper basis for rejecting an application to amend an organisation’s rules under s 158. I accept that there may be cases where the impact of the rule alteration is likely to be so significant to one or more employers that it may justify exercising a discretion to refuse a proposed rule alteration. This is not such a case.

[315] Relatedly, the AIPA submits, and I accept for the most part, that it has a close, cooperative, trusting, open and effective working relationship with Qantas. Interfering with this model is not, so the AIPA contends, in the interests of Qantas, its employees, or in the public interest. I do not accept that permitting the AFAP to amend its rules so that it can have Qantas pilots join as members will have a material impact on the relationship between the AIPA and Qantas, nor will it have a material negative impact on the interests of Qantas, its pilots, or the public. History supports this view. There is no suggestion in the evidence that (a) allowing the AIPA to amend its rules in 2007 to have pilots from Qantas group airlines join the AIPA or (b) permitting VIPA to compete with the AFAP for Virgin’s pilots as members had any material negative impact on the relevant employers, their pilots, or the public.

The impact of COVID-19

[316] The AIPA and Qantas submit that the COVID-19 pandemic has had a colossal impact on Qantas’s business and its pilots. They say that Qantas’s international operations have been reduced to a small number of freight and repatriation flights; domestic flights remain at a fraction of normal levels; the entire fleet of Qantas’s A380s have been placed in storage and are unlikely to fly for three years; 80% of short haul pilots and 95% of long haul pilots have been stood down; and announcements have been made to reduce Qantas pilot numbers by significant number. The AIPA submits that it has worked cooperatively and collaboratively with Qantas in relation to various issues associated with these significant changes. The AIPA also submits that both the AFAP and the AIPA have been detrimentally affected by the dramatic and sudden change in circumstances, including by reductions in union fees.

[317] The AIPA contends that there is uncertainty as to Qantas’s operations, both now and in the immediate future; there is a strong need for pilot representation; there is no time for competition between unions; no time for the building of new relationships with the AFAP; no time to be spent listening to a new voice with different motives; and the crucial role that the AIPA is currently playing on behalf of the whole Qantas pilot body in working with Qantas as it responds to these changes would be undermined by the granting of an application for a new player to enter the field. It is submitted that these matters are significant, and they provide a compelling basis for the Commission to dismiss the application as a matter of discretion. It is contended that granting the application at this time, or in the foreseeable future, will not promote or protect the economic and social interests of Qantas’s pilots or Qantas.

[318] Qantas submits that the difficulties and challenges presented by COVID-19 have made it critical for Qantas to be responsive and efficient in addressing the challenges, including collaborating and consulting with the AIPA in order to meet future operational challenges in a flexible and practical way. At times, this has required agreeing to variations to the processes contained in the applicable enterprise agreements. The introduction of another industrial organisation at this time will, so Qantas contends, likely give rise to further complexity and practical difficulties in communicating with, and implementing any arrangements involving, multiple industrial organisations.

[319] The AFAP makes three submissions in response to the reliance on the impact of the COVID-19 pandemic. First, the AFAP contends that it is in challenging times that the advantages of a second union choice are strongest. It is in challenging times that “two heads” are a great advantage over one. It is in resource-constrained times that “two bank accounts” are better than one. Tellingly, it is contended that there has been no evidence in the case, and no attempt to do so, to show that Virgin or Jetstar have been crippled in responding to the pandemic by having to deal with multiple unions. Secondly, in light of the principles concerning s 158 encouraging competition between unions, the AFAP submits that there is, and can be, no suggestion that that approach is to apply only in prosperous times. Indeed, since the aviation industry is a volatile one, affected by terrorist attacks, pandemics, industrial disputation, and business collapses, it may be difficult to identify when those “prosperous” times occur. Thirdly, the AFAP submits that it cannot be assumed that the pandemic will remain indefinitely; regard must be had to post-pandemic circumstances.

[320] I accept that the COVID-19 pandemic has had, and will continue to have for some material time, a significant impact on Qantas, its operations, and its pilots. I also accept that the AIPA has worked effectively and cooperatively with Qantas during the pandemic to reach agreement on a range of variations to the processes contained in the applicable enterprise agreements. I do not expect any change on these fronts if the AFAP’s rules are amended as proposed. Moreover, although the AFAP does not have any of the exclusive rights the AIPA has under the applicable enterprise agreements, and therefore does not need to consent to variations proposed by Qantas, I am confident that when Qantas needs to consult with the AFAP about potential changes or other material matters connected with the COVID-19 pandemic, or any other disrupter to the aviation industry, the AFAP will act in a timely and cooperative manner, and will not cause any significant delay to a decision which needs to be made in connection with the impact of the pandemic. My confidence on this score is based on the AFAP’s track record of communicating and working with other airlines, including in the Qantas group, in response to significant events such as COVID-19. 72 Many of those airlines have to deal with multiple unions.73 Finally, although the pandemic has reduced the revenue of the AIPA and the AFAP (because they are receiving less in union dues), the evidence demonstrates that each union should have sufficient reserves to survive the pandemic and I do not consider that consenting to, or refusing, the AFAP’s application will result in either union suffering significant financial stress.

Conclusion

[321] In all the circumstances and for the reasons set out above, I consent to the application by the AFAP to amend its rules in the manner and form proposed by it.

[322] In accordance with s 158(9) of the RO Act, the Commission’s consent to the AFAP’s application will take effect on 3 March 2021.

DEPUTY PRESIDENT

Appearances:

C Dowling SC with J Fetter, counsel, for the AFAP
M Irving QC with T Slevin, counsel, for the AIPA
B Rauf, counsel, with T Brookes, solicitor, for QANTAS

Hearing details:

2020.
Newcastle (by video conference):
3 – 4 August, 19 – 20 and 23 – 24 November, and 7 – 8 December.

Printed by authority of the Commonwealth Government Printer

<PR727263>

 1   Rule 2.1(a)(i)-(iii) of the AFAP rules

 2   See paragraphs [81] to [83] below

 3   Rule 2.1(a) of the AFAP rules

 4   Rule 2.1(a) of the AFAP rules

 5   Rule 2.1(b) of the AFAP rules

 6   See the eligibility rule quoted in R v Stanton; ex parte Associated Airlines Pty Ltd (1978) 141 CLR 281 at 281.

 7   Print N3320

 8   AIPA Rules Case [2007] AIRC 420 (AIPA Rules Case)

 9   [2016] FWCFB 22 (Resmed) at [96]

 10   [2014] FWC 3658 (ALAEA) at [12]-[18]

 11   ResMed Limited v AMWU (No 2) [2017] FCAFC 14

 12   Re CPSU (2000) 100 IR 296 (Re CPSU) at [14]-[81]

 13   Re CPSU at [80]

 14   Re CPSU at [81]

 15   Section 3(e) of the FW Act

 16   Re CPSU at [81]

 17   NTEIU v CPSU (1999) 93 IR 365 at [203]

 18   CPSU [2016] FWC 985 at [29]

 19   Ibid; Re CPSU at [95]

 20   Re CPSU at [95]

 21   CPSU [2016] FWC 985 at [28]-[30]; ALAEA at [19]

 22   Re AWU; Ex parte CFMEU (2002) 120 FCR 527 at [44]-[52]

 23   Section 158(5) of the RO Act

 24   ResMed at [123]

 25   ALAEA at [64]

 26   Re CPSU at [85]-[96]; ALAEA at [19]-[22]

 27   Notice of Objection dated 1 July 2019 filed on behalf of the APIA

 28   Notice of Objection dated 3 July 2019 filed on behalf of Qantas

 29   Notice of Objection dated 26 June 2019 filed on behalf of the TWU

 30   38 exhibits and 4285 paragraphs of transcript

 31   [2018] FWC 2624

 32   Rayner v Riley [2020] FCA 587 at [75]

 33   [2020] FWC 1489 (RTBU) at [52]

 34   (2006) 158 IR 360 (Australian Principals Federation) at [61] and generally

 35   Ex 32

 36   (2006) 158 IR 360

 37   [2014] FWCFB 3501 at [34]

 38   R v Cohen; Ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587; Co-operative Bulk Handling Ltd v Waterside Workers’ Federation of Australia (1980) 49 FLR 355 at 361-2; Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia (No. 2) (1982) 59 FLR 78 at 87

 39   Macquarie Dictionary, Revised Third Edition, “On … 15. membership or association; on the staff of a newspaper; to serve on a jury …”

 40   Macquarie Dictionary, Revised Third Edition

 41   Ansett Transport Industries (Operations) Pty Ltd & Ors v Australian Federation of Air Pilots [1991] 1 VR 637

 42   Appeal against a decision of SDP Hancock (2607/1995) Print N7298 at p 29

 43   Appeal against a decision of SDP Hancock (2607/1995) Print N7298 at p 48

 44   M9403

 45   Ex 15 at [14]

 46   Ex 15 at [19]

 47   Ex 15 at [16]-[17]

 48   Ex 15 at [62]

 49   Ex 15 at [16]

 50   s 531 of the Fair Work Act

 51   For example, PN496 & PN501-503

 52   NTEU v CPSU (1999) 93 IR 365 (NTEU) at [212]-[213]

 53   AIPA’s closing written submissions at [220]

 54   Ibid

 55   AIPA’s closing written submissions at [350]

 56   AIPA’s closing written submissions at [541(b)]

 57   NTEU at [209]

 58   Resmed at [96], applying ALAEA at [12]-[18]

 59   Transcript, 23 November 2020, PN249

 60   Ex 1 at [39] & [54]

 61   Ex 1 at [101]

 62   Ex 12 at [37]

 63   Ex 23 at [11]-[12]

 64   Transcript, 25 November 2020, PN1567

 65   Ex 1 at [43]

 66   Ex 21 at [73]

 67   AIPA Rules Case at [17]-[18]

 68   s 3 of the FW Act

 69   s 3(f) of the FW Act

 70   s 5(5) of the RO Act

 71   s 5(1) of the RO Act

 72   See, for example, Ex 3 at [3]-[7]

 73   Ibid