Case: Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441
Outcome: referred to
This proceeding commenced by application dated 8 March 2006. A statement of claim was filed on the same day. Both the application and the statement of claim were subsequently amended. On 6 November 2006 I ordered that the applicant's further amended statement of claim be struck out but granted leave to replead on or before 30 November 2006: see [2006] FCA 1441. I expressed some scepticism as to whether a case under the former s 298K of the Workplace Relations Act 1996 (Cth) ("the Act ") could be pleaded conformably with the reasons which I gave for striking out the pleading: see [2006] FCA 1441 at [34] . Not deterred the applicant filed a further amended application and a second further amended statement of claim on 30 November 2006. By notice of motion dated 18 December 2006, which was filed on 17 January 2007, the respondent seeks an order striking out the proceeding, or alternatively, the second further amended statement of claim. 2 The amended application sought the imposition of penalties on the respondent and orders for compensation, injunctions and declarations with respect to alleged contraventions of s 298K of the Act . 3 The further amended statement of claim was struck out because it did not plead facts sufficient to establish any contravention of s 298K before that provision was repealed on 27 March 2006. Specifically, it was held that the facts pleaded did not establish that when, in December 2005 and February 2006, the respondent announced a decision to transfer four Airbuses to Jetstar late in 2006 and early in 2007 and that those aircraft would not be crewed by its employees, it had thereby injured or prejudicially changed the position of particular employees or threatened to do either or both of these things. 8 The relevant legislation is set out in my earlier reasons: see [2006] FCA 1441 at [4] to [7]. 9 The respondent raises many complaints about the amended pleading. They may be summarised as follows: &#8226; No new material facts are pleaded which could support the allegation that the respondent had contravened s 298K(1)(b) and/or (c) on or before 27 March 2006. &#8226; Some conduct by the respondent which is said to be directed to the implementation of the December 2005 decision such as the transfer of the aircraft and the loss of remuneration and leave entitlements occurred after 27 March 2006 and yet is relied on to support alleged contraventions of s 298K. &#8226; The amended pleading is incomprehensible and embarrassing. This is because, in para 31B, the applicant contends that the making and communication of the 2005 decision (which occurred before 27 March 2006) and the steps taken to implement it (which occurred after 27 March 2006) constituted the relevant injury and/or alteration to prejudice. A reason (the pre 27 March 2006 requirement) for the respondent's impugned conduct is said to be that the pilots were entitled to the benefit of the enterprise bargaining agreement (para 32). Although para 32 covers conduct occurring both before and after 27 March 2006, para 32A pleads that "in the premises" the respondent has contravened s 298K. Paragraph 32B then pleads, in the alternative, that the sole or dominant reason (the post 27 March 2006 requirement) for the respondent's impugned conduct was that the pilots had the benefit of the enterprise bargaining agreement. Paragraph 32C pleads that "in the premises" the respondent has, since 27 March 2006, contravened s 792(1) of the amended Act . The respondent complains that, by pleading its case in this way, the applicant has merged the separate causes of action provided for in ss 298K and 792 thereby creating confusion such that the respondent is unable to comprehend the case it is called upon to meet or plead to it. 10 The applicant sought to meet these objections by pointing to the amendment to para 31B which now includes a reference to the "implementation" of the decision. Most of the steps which it is said were taken as part of the implementation process were alleged to have occurred prior to 27 March 2006. The steps relied on by counsel for the applicant which occurred at this time were: &#8226; The respondent's decision that Jetstar would upgrade its air operator certificate so it could operate wide bodied long haul aircraft: para 19. &#8226; The negotiations in December 2005 and 2006 with the Jetstar pilots' counsel to introduce terms and conditions of employment which would apply to Jetstar pilots involved in long haul flying: para 21. &#8226; The respondent's refusal to permit the applicant to participate in those negotiations: para 20. &#8226; The respondent's refusal, on or about 10 February 2006, to entertain negotiations with the applicant for alternative terms and conditions of employment upon which the Airbus fleet pilots would carry out the work on the four aircraft allocated to Jetstar: para 25A. &#8226; The variation, on or about 10 March 2006, of the Jetstar agreement as a consequence of agreement reached in negotiations: paras 23 and 24. The steps taken after 27 March 2006 which are relied on were the transfer of the three aircraft in October and November 2006: paras 25I, 25J and 25K.