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Fair Work Act 2009
s.615—President may direct a Full Bench to perform a function
Captain Anthony Lucas
v
Qantas Airways Limited
(C2023/1371)
JUSTICE HATCHER, PRESIDENT SYDNEY, 14 APRIL 2023
Request for referral of application under Fair Work Act 2009 (Cth) s 739 to a Full Bench –
Fair Work Act 2009 (Cth) ss 582, 615 – request refused.
[1] On 15 March 2023, Captain Anthony Lucas applied under s 739 of the Fair Work Act
2009 (Cth) (FW Act) for the Commission to deal with a dispute with Qantas Airways Limited
(Qantas) regarding clause 19.1.2 of the Qantas Airways Limited Pilots (Long Haul) Enterprise
Agreement 20201 (Agreement). That clause reads:
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 [Australian and International Pilots] Association for operational
reasons. The Association will not unreasonably withhold agreement.
[2] The Australian and International Pilots Association (AIPA) is covered by the
Agreement. The dispute is said to be about whether the allocation of pilots to aircraft types
should be in accordance with seniority, or whether clause 19.1.2 requires Qantas to obtain the
AIPA’s consent in order for a direct allocation to be valid.
[3] On 17 March 2023, Captain Lucas requested by correspondence that his dispute
application be referred to a Full Bench of the Commission pursuant to s 615 of the FW Act.
The dispute application is currently allocated to Commissioner Ryan, who has issued directions
and listed the matter for hearing from 16 to 18 May 2023. Captain Lucas has applied for
permission to appeal the Commissioner’s directions. That matter is listed for hearing on 17
April 2023.
[4] Section 615 of the FW Act provides that I may direct a Full Bench to perform a function
or exercise a power:
615 The President may direct a Full Bench to perform function etc.
(1) A function or power of the FWC may be performed or exercised by a Full Bench
if the President so directs.
[2023] FWC 888
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 888
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(2) The President may direct that the function or power be exercised by a Full Bench
generally, or in relation to a particular matter or class of matters.
(3) To avoid doubt, a reference in this section to a Full Bench includes a reference to
more than one Full Bench.
[5] It is well-settled that s 615 of the FW Act confers a broad discretion upon the President
to direct that a function or power be exercised by a Full Bench. I note that it is not suggested
by Captain Lucas that the public interest would require me to refer the matter under s 615A.
[6] In support of his request for referral to a Full Bench, Captain Lucas contends in his
correspondence that:
• An appeal of any single-member decision is inevitable because there are
potentially conflicting authorities on whether post-agreement conduct may be
used to aid interpretation, in this case of clause 19.1.2.
• The urgency of the construction exercise in dispute and its ability to affect the
covered pilots’ future rights and seniority mean that referring the dispute
application to a Full Bench would be in the interests of justice.
• Referring the dispute application to a Full Bench would also mean that the parties
would only need to bear the costs of a single arbitration by the Commission.
[7] Qantas opposes referral to a Full Bench.
[8] I am not satisfied that I should exercise my discretion in favour of referring Captain
Lucas’ dispute application to a Full Bench. The clause of the Agreement that is the subject of
the dispute is clearly specific to the circumstances of Qantas’ business and, thus, the dispute
has no broader industrial ramifications requiring Full Bench consideration. Captain Lucas has
not explained why, nor am I persuaded that, the alleged issue of ‘potentially conflicting
authorities on whether post-agreement conduct may be used to aid interpretation’ will
necessarily arise in the determination of the matter. Both parties agree that the resolution of the
dispute is time-sensitive, in which case the preferable course is for the matter to remain with
the Commissioner, who has already made directions and listed the matter for hearing, rather
than starting again before a Full Bench. Whether or not an appeal is ‘inevitable’, as Captain
Lucas suggests, the time sensitivity of the matter makes it preferable that any necessary fact-
finding be undertaken by the Commissioner rather than a Full Bench. Any appeal subsequent
to the Commissioner’s decision may be the subject of an expedited hearing if necessary.
PRESIDENT
THE FAIR WORK FAI COMMISSION THE
[2023] FWC 888
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