Australian Licensed Aircraft Engineers Association v Qantas Airways Limited [2022] FCAFC 50 (01 April 2022) (Besanko, Bromberg and Wheelahan JJ)


INDUSTRIAL LAW — appeal from declarations made by Federal Court of Australia — where following onset of COVID-19 pandemic, respondent airlines each stood down number of Licensed Aircraft Maintenance Engineers (Aircraft Engineers) — where enterprise agreement with respect to each respondent contained stand down clause providing that respondents had right to deduct payment for any day employee cannot be usefully employed because of stoppage of work, in case of Qantas, through any cause for which Qantas cannot reasonably be held responsible and, in case of Jetstar, by any cause which Jetstar cannot reasonably prevent — where appellant applied to Fair Work Commission (FWC) for it to deal with dispute on basis there was no “stoppage” of work and Aircraft Engineers stood down could be “usefully employed” — where respondents issued Originating application in Federal Court of Australia seeking declarations that circumstances fell within stand down clause in each case — Statement of Agreed Facts and Admissions and Supplementary Statement of Agreed Facts and Admissions as to, among other things, almost total reduction in travelling passengers on respondents’ airlines as result of COVID-19 pandemic, cancellation of or decision not to schedule certain flights by respondents and other cost-saving measures implemented by respondents prior to standing down Aircraft Engineers and financial significance of stand downs — where primary judge made declarations sought by respondents — whether primary judge erred in construction of stand down clauses — consideration of proper approach to causation — whether stand down clauses direct attention only to immediate or direct cause of stoppage of work or admit of consideration of other or underlying factors or real, substantial or effective cause(s) — whether appropriate to consider reasonableness of employer’s conduct where employer identified in chain of causation, including by reference to economic considerations — appeal dismissed

INDUSTRIAL LAW — appeal from declaration made by Federal Court of Australia — where enterprise agreement with respect to Jetstar contained “status quo” clause providing for continuation of work in certain circumstances while dispute resolution procedure being followed — where primary judge made declaration that Jetstar not required by reason of status quo clause to lift, withdraw or otherwise not impose stand down of Aircraft Engineers — whether primary judge erred in concluding status quo clause does not apply where very dispute is or includes dispute about whether there is useful employment or work for employee — appeal dismissed

INDUSTRIAL LAW — cross-appeal from order made by Federal Court of Australia that Originating application issued by respondents otherwise be dismissed — where enterprise agreement with respect to each respondent contained clause setting dispute resolution procedure — where two pre-conditions in dispute resolution procedure required to be met before dispute able to be referred to FWC — where first pre-condition a meeting involving employee and supervisor or manager (stage one meeting) — where evidence that following announcement by Qantas of proposed stand downs, Duty Maintenance Manager and Aircraft Engineer employed by Qantas discussed proposed stand downs with Aircraft Engineers one of whom questioned if Qantas could stand him down and indicated he did not accept it could — where evidence that following announcement by Jetstar of proposed stand downs, Aircraft Engineer employed by Jetstar approached Duty Operations Manager and Base Maintenance Manager to discuss proposed stand downs — where respondents in Originating application sought injunction or writ of prohibition directed to FWC restraining it from hearing or determining dispute subject of appellant’s applications to FWC on basis that discussions in each case did not constitute stage one meeting — whether primary judge erred in concluding stage one meeting had taken place in case of both Qantas and Jetstar — consideration of “minimum content” of dispute resolution clause in respect of stage one meeting — whether requirement that parties to stage one meeting knew or on facts it can be inferred they knew engaging in dispute resolution procedure — cross-appeal dismissed