Adann Sadiki and Others v Vee H Aviation Pty Ltd T/A Corporate Air [2023] FWC 2634

1 Fair Work Act 2009 s.739—Dispute resolution Adann Sadiki and Others v Vee H Aviation Pty Ltd T/A Corporate Air (C2022/7968) COMMISSIONER CRAWFORD SYDNEY, 11 OCTOBER 2023 Dispute about matters arising under the Air Pilots Award 2020 – dispute concerning whether employer has consented to arbitration – application dismissed Background [1] On 2 December 2022, a Form F10 Application for the Commission to deal with a dispute in accordance with a dispute settlement procedure (Application) was filed by the Australian Federation of Air Pilots (AFAP) on behalf of the following applicants: • Adann Sadiki; • Alana Biryukov; • Anthony Obeyeskere; • Brendan Flanders; • Callum Larkman; • Dan Stanford; • Dante Schofield; • David Lindorff; • Ethan Barr; • Jay Vanderhoek; • Jonothon Sodoman; • Julian Sawyer; • Mark Bennett; • Mark Ridolfi; • Matt Alcorn; • Max Pettit; • Nathan Korendijk; • Nick Faulks; • Paul Patman; • Ray Zhang; • Richard Craggs; • Rob Beauchamp; • Rob Woonton; [2023] FWC 2634 DECISION -- 1 of 12 -- [2023] FWC 2634 2 • Roland Jones; • Ryan James; • Ryan Matthews; • Thomas Prell; and • Tom Hawksworth. (Pilots). [2] The Pilots are current, or former, employees of Vee H Aviation Pty Ltd trading as Corporate Air (Corporate Air). [3] The relief sought in the Application is: A determination that clause 15.2(b) of the Air Pilots Award 2020, properly construed, has no application to the respondent’s operation, because the exemptions and concessions contemplated by the clause do not exist in, or have relevance to, the current statutory framework. [4] There is no dispute that the Air Pilots Award 2020 (Award) applies1 to Corporate Air and its relevant employees and hence that the disputes procedure in clause 32 of the Award may provide the Fair Work Commission (Commission) with jurisdiction to deal with a dispute about the Award pursuant to s.739 of the Fair Work Act 2009 (FW Act). [5] On 7 December 2022, Corporate Air filed a Form F1 Application which sought dismissal of the Application on the ground that the Pilots have not followed the disputes procedure in clause 32 of the Award (Dismissal Application). [6] A conference was held before Commissioner Spencer on 9 December 2022. The matter did not resolve. Directions for the filing of material in relation to Corporate Air’s jurisdictional objection were issued on 15 December and the jurisdictional objection listed for hearing on 25 January 2023. The hearing occurred on that date. Permission was granted to Corporate Air to be legally represented by Mark Mackrell from Norton White at the hearing. The Pilots were represented by Jared Marks from the AFAP. [7] On 21 August 2023, the matter was allocated to me to determine. In a Decision2 issued on 23 August 2023, I dismissed Corporate Air’s jurisdictional objection and determined the Pilots had complied with the dispute resolution procedure in the Award. [8] I then listed the matter for Conference via Teams on 6 September 2023. Consent for arbitration [9] Mr Marks continued to represent the Pilots at the conference on 6 September 2023 and Mr Mackrell continued to represent Corporate Air. The conference was not recorded. [10] At the beginning of the conference, Mr Marks indicated the view of the Pilots was that the application should be programmed and listed for determination because there is no prospect of an agreement being reached in conciliation. Given this position, I commenced a conversation -- 2 of 12 -- [2023] FWC 2634 3 about filing dates and hearing dates. This turned into a lengthy discussion because it was reasonably clear Corporate Air was seeking a protracted schedule and to not have a hearing conducted this year. Eventually, after hearing from the parties, I settled on directions for the filing of material and determined the application would be heard in Sydney on 6, 7 and 8 December 2023. [11] One issue that I had been confused about since being allocated this matter was why Corporate Air’s jurisdictional objection concerning compliance with the dispute resolution procedure in the Award had been so hotly contested when Corporate Air could have simply indicated it did not consent to the Commission arbitrating the dispute. [12] The reason that this had occurred became apparent at the end of the conference on 6 September 2023. I asked Mr Mackrell to confirm that Corporate Air would not be making any further jurisdictional objections. Mr Mackrell replied that no further jurisdictional objections would be raised. I then stated I would list the matter for consent arbitration on 6, 7 and 8 December 2023. My reference to “consent arbitration” clearly alerted Mr Mackrell to the fact that the Award only provides for arbitration by consent. Mr Mackrell then promptly indicated Corporate Air does not consent to the dispute being arbitrated by the Commission. [13] In response to these developments, Mr Marks submitted that it was too late to take this point and that Corporate Air should be taken to have already consented to arbitration via its conduct. [14] I decided to add directions regarding the filing of submissions on the threshold issue of whether Corporate Air has consented to arbitration at the beginning of the filing schedule and indicated I would determine what further steps should be taken in relation to this issue after reviewing the submissions. [15] The Pilots filed a submission in support of their position that Corporate Air has consented to arbitration on 13 September 2023. Corporate Air filed a submission in response on 20 September 2023. After reviewing the submissions, I listed a hearing via Teams regarding the issue of whether Corporate Air has consented to arbitration for 3 October 2023. [16] Mr Marks and Mr Mackrell continued their appearances at the hearing on 3 October 2023. During the hearing, I requested a short note from Mr Marks regarding the applicability of equitable principles in Commission proceedings and indicated Corporate Air would be provided with an opportunity to respond. Mr Marks filed a short note later in the day on 3 October 2023 and Corporate Air filed a response on 4 October 2023. I reserved my decision at the end of the hearing. The disputes procedure in the Award [17] The disputes procedure in clause 32 of the Award states: 32. Dispute resolution [Varied by PR763243] -- 3 of 12 -- [2023] FWC 2634 4 32.1 Clause 32 sets out the procedures to be followed if a dispute arises about a matter under this award or in relation to the NES. 32.2 The parties to the dispute must first try to resolve the dispute at the workplace through discussion between the employee or employees concerned and the relevant supervisor. 32.3 If the dispute is not resolved through discussion as mentioned in clause 32.2, the parties to the dispute must then try to resolve it in a timely manner at the workplace through discussion between the employee or employees concerned and more senior levels of management, as appropriate. 32.4 If the dispute is unable to be resolved at the workplace and all appropriate steps have been taken under clauses 32.2 and 32.3, a party to the dispute may refer it to the Fair Work Commission. 32.5 The parties may agree on the process to be followed by the Fair Work Commission in dealing with the dispute, including mediation, conciliation and consent arbitration. 32.6 If the dispute remains unresolved, the Fair Work Commission may use any method of dispute resolution that it is permitted by the Act to use and that it considers appropriate for resolving the dispute. 32.7 A party to the dispute may appoint a person, organisation or association to support and/or represent them in any discussion or process under clause 32. 32.8 While procedures are being followed under clause 32 in relation to a dispute: (a) work must continue in accordance with this award and the Act; and (b) an employee must not unreasonably fail to comply with any direction given by the employer about performing work, whether at the same or another workplace, that is safe and appropriate for the employee to perform. 32.9 Clause 32.8 is subject to any applicable work health and safety legislation. [Note 1 varied by PR763243 ppc 01Aug23] NOTE 1: In addition to clause 32, a dispute resolution procedure for disputes regarding the NES entitlement to request flexible working arrangements is contained in section 65B of the Act. [Note 2 varied by PR763243 ppc 01Aug23] NOTE 2: In addition to clause 32, a dispute resolution procedure for disputes regarding the NES entitlement to request an extension to unpaid parental leave is contained in section 76B of the Act. -- 4 of 12 -- [2023] FWC 2634 5 [18] The Pilots accept that the dispute resolution term in the Award only allows for arbitration by consent. I agree. Therefore, the issue that needs to be determined is whether Corporate Air has consented to the Commission arbitrating the dispute in accordance with clause 32.5 of the Award. Submissions Pilots [19] The Pilots’ submissions dated 13 September 2023 highlighted that Corporate Air’s Form F1 Dismissal Application filed on 7 December 2022 stated: “In the event this Application is not dismissed as a result of a failure to comply with clause 32.4, the Respondent will require additional time to prepare a detailed response outlining the basis on which it contends that clauses 15.4 to 15.8 are excluded”. [20] The Pilots then referred to both parties attending a conciliation conference before Commissioner Spencer on 9 December 2022, with their legal representatives. The Pilots submitted: “Corporate Air did not object to the Commission dealing with the matter by arbitration or raise any issues regarding consent to arbitration. To the contrary, Corporate Air sought to have the matter arbitrated, initially on jurisdictional grounds alleging the Pilots had not complied with the dispute resolution procedure.” [21] The Pilots then referred to the “arbitration” of Corporate Air’s jurisdictional objection on 25 January 2023, which led to my decision to dismiss the objection on 23 August 2023. [22] In reference to what occurred at the conference before me on 6 September 2023, the Pilots submitted: “Whilst Corporate Air confirmed to the Commission that no further jurisdictional objections would be made, they sought to have the proceedings dismissed by not consenting to the matter being arbitrated further which, in effect, raised a second jurisdictional objection.” [23] The Pilots’ submission then focused on the following four arguments in support of its position that Corporate Air has consented to the dispute being arbitrated. Corporate Air has consented via conduct [24] The Pilots submitted that there is no formality required for a party to indicate they consent to the Commission arbitrating a dispute and that consent is left to the conduct of the parties. [25] The Pilots submitted that Corporate Air and its solicitors have proceeded at all times on the basis that they consented to arbitration including participating in what the Pilots described as “the hearing of an interlocutory application”. At no time before the arbitration of the jurisdictional objection did Corporate Air say, or do, anything to suggest that they did not -- 5 of 12 -- [2023] FWC 2634 6 consent to the matter being arbitrated. To the contrary, Corporate Air vigorously negotiated the timetable and hearing dates for the substantive hearing and notified the Pilots of their intention to lead evidence from an expert witness in support of its case. [26] The Pilots concluded their submission on this point by stating that the Commission is entitled to accept from Corporate Air’s actions that it consented to arbitration and no sensible reason exists to arbitrate a jurisdictional objection where the matter could be disposed of by withholding consent. If not immediately obvious from its actions, it would be open for the Commission to view Corporate Air’s consent is implied by its conduct. Consent given cannot be withdrawn [27] The Pilots next submitted with reference to public policy considerations and three authorities that consent cannot be withdrawn once given. The cases referred to were: • Robert Duncan McIntyre v Dawson Contractors Pty Ltd (B1361 of 2000) Queensland Government Industrial Gazette. • Maree Porter and Macedon Ranges Insurance Agency 910/96 Print N3450 [1996] AIRC 1366. • Hullet v Benton [2022] FedCFamC1A 13. Anshun estoppel [28] The Pilots then referred to some key authorities concerning Anshun estoppel and submitted that an estoppel operates in this case to preclude Corporate Air from pursuing a claim that it unreasonably failed to raise in the first jurisdictional hearing. The Pilots submitted the subject matter of the first and second jurisdictional objections are sufficiently “connected” to trigger an estoppel and it was plainly unreasonable for Corporate Air to not have raised that it did not consent to arbitration when agitating its first jurisdictional objection. Abuse of process [29] The Pilots finally submitted that even if Corporate Air is not strictly estopped from pursuing the second jurisdictional objection, it would nevertheless be improper for it to succeed. The Pilots referred to the oppression they have suffered from Corporate Air’s conduct, particularly the expense and inconvenience of defending the first jurisdictional objection. The Pilots submitted the Commission should exercise its discretion to dismiss the second jurisdictional objection. [30] As referred to above, the Pilots filed a further submission regarding the application of estoppel in Commission proceedings after the hearing ended on 3 October 2023. The cases identified by the Pilots in this submission demonstrate the High Court has confirmed estoppel can operate in relation to decisions of a statutory tribunal.3 However, the other cases cited by the Pilots indicate the principles of estoppel operate in the Commission in a similar way to the rules of evidence, in that the Commission is not strictly bound to apply the rules of evidence or -- 6 of 12 -- [2023] FWC 2634 7 an estoppel, but both can be relevant as a reference point in relation to how the Commission exercises its powers.4 [31] Mr Marks also provided oral submissions at the hearing on 3 October 2023. Mr Marks took me to several parts of the Digital Court Book for the hearing before Commissioner Spencer on 25 January 2023. Mr Marks identified that: • Corporate Air’s outline of submissions referred to it seeking an order that the Commission does not have jurisdiction “to determine” the application.5 • The outline of submissions for the Pilots referred to Corporate Air submitting the “FWC may not hear the application”.6 • Corporate Air’s reply submissions referred to the Commission not having jurisdiction to “hear the Application”.7 [32] Mr Marks submitted the use of this terminology is consistent with Corporate Air consenting to have the substantive dispute arbitrated. [33] Mr Marks indicated Corporate Air was clearly on notice the Pilots were seeking to have the dispute arbitrated, as opposed to conciliation or some other step, because the Form F10 filed by the Pilots only referred to a determination in the relief section. [34] Mr Marks also referred to the judgment of McKerracher J in One Tree Community Services Inc v United Voice (No 2) [2020] FCA 390. This judgment highlights that “consent is a concept to be determined objectively”.8 The judgment also refers to the following statement from the High Court: “… the legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions”.9 Corporate Air [35] Corporate Air’s submissions dated 20 September 2023 highlighted that its initial objection was directed at the issue of whether the Pilots had complied with the dispute resolution procedure in the Award. [36] Corporate Air submitted: “There is nothing in the Respondent’s jurisdictional objection or the submissions subsequently filed by the Respondent in support of the objection which could be said to constitute consent to the referral of the substantive dispute for arbitration by the FWC. The objection to jurisdiction was based on a contention that the necessary steps before an application in the FWC could be made had not been taken. Subject to that objection, the FWC was otherwise empowered to proceed to mediation or conciliation… … Once the FWC determines that it has jurisdiction to deal with a matter, it has the power to take various steps to deal with disputes, in accordance with clause 32 of the -- 7 of 12 -- [2023] FWC 2634 8 Award and s595 of the FWA. The ordinary course would be for the matter to be listed for mediation or conciliation. However, on that occasion, the Applicant submitted that the matter should be listed for hearing of the Substantive Dispute by way of arbitration. This was the first occasion on which the question of the parties’ consent to arbitration was raised. The Respondent did not consent to arbitration. [37] Corporate Air referred to an FWC Full Bench decision that refers to the “express agreement”10 of the parties being required where jurisdiction to arbitrate is contingent on the consent of the parties. Corporate Air also referred to the decision of Commissioner Simpson in Holman v Campbell, where the Commissioner stated: “On a separate point, the Applicant submits that the Respondent has made no attempt as a matter of fact to establish that it has not consented to arbitration. Contrary to the submission of the Applicant, the onus is not on the Respondent to establish that it has not consented to arbitration, the power to arbitrate under an award would trigger when consent is affirmed for the Commission to arbitrate… It is also wrong of the Applicant to submit that because the Respondent concedes the Commission has jurisdiction to deal with the dispute, it must follow that the Commission has power to arbitrate the dispute. The legislation clearly contemplates the Commission having jurisdiction to conduct conferences and engage parties in conciliation, mediation or to provide an opinion or make a recommendation without necessarily having power to issue a legally binding decision.”11 [38] Corporate Air referred extensively to the Commission having various options in terms of how to deal with the dispute, such as conciliation or mediation, making a recommendation or expressing an opinion. Corporate Air submitted it did not have an opportunity to indicate whether it consented to an arbitration prior to the conference on 6 September 2023. [39] Corporate Air submitted an estoppel as invoked by the Pilots cannot grant the Commission jurisdiction to arbitrate the dispute. [40] Corporate Air’s further submission on estoppel dated 4 October 2023 responded to each of the authorities identified in the Pilots’ submission dated 3 October 2023. Corporate Air submitted the judgment in One Tree is distinguishable because it dealt with the issue of whether an employer’s consent to arbitration was required in circumstances whereby it had inherited a dispute resolution term in an enterprise agreement via a transfer of business, and the inherited provision did not require the consent of both parties for arbitration. Corporate Air submitted that legal issue is distinct from the issue of whether Corporate Air has consented to arbitration in accordance with the Award. [41] Corporate Air submitted: “As the Applicants properly concede, there is no legal impediment to the Respondent objecting to jurisdiction on the ground which was raised here and, subsequently, after the other dispute resolution processes have been exhausted, withholding consent to an arbitration. Once that is accepted, then there is no basis for contenting that the -- 8 of 12 -- [2023] FWC 2634 9 Respondent had had an obligation to decide whether or not it would consent to an arbitration, and to signify if it would not consent, at the time of the objection.” [42] Mr Mackrell also provided oral closing submissions during the hearing on 3 October 2023. Mr Mackrell emphasised that Corporate Air initially objected to the Commission having any involvement at all in the matter because the Pilots had not followed the dispute resolution procedure. Corporate Air running and losing that argument does not constitute consent to the Commission arbitrating the substantive dispute. [43] Mr Mackrell responded to Mr Marks’ argument that the Form F10 only referred to a determination in the relief section by stating that is not determinative, because the Commission has jurisdiction to decide to deal with the dispute in a manner that is different to that sought in the application. [44] Mr Mackrell accepted that consent is determined objectively but argued there is no evidence that Corporate Air ever consented to arbitration. Mr Mackrell highlighted the onus is on the Pilots to prove Corporate Air consented to arbitration and they had not discharged the onus. [45] Mr Mackrell argued there was no obligation on Corporate Air to indicate whether it consented to arbitration before pursuing the first jurisdictional objection and Anshun estoppel has no role to play. [46] In relation to the extensive debate that occurred around the timetabling for an arbitration during the conference on 3 October 2023, Mr Mackrell effectively took personal responsibility for not raising the issue of consent earlier. However, he indicated the matter was listed for conference so he was not on notice that programming would occur and the delay between the discussion around timetabling and Mr Mackrell stating Corporate Air did not consent to arbitration was brief. Consideration [47] As submitted by the Pilots, the issue of whether Corporate Air has consented to the Commission arbitrating this dispute must be determined objectively based upon what its “words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions.”12 [48] I consider the following weighs against a finding that Corporate Air has consented to the Commission arbitrating the dispute: • Corporate Air did not initially consent to the Commission exercising any powers in relation to the dispute. To the contrary, Corporate Air applied to have the dispute dismissed on the basis that the Pilots had not complied with the dispute resolution procedure. Although the Pilots rely on this conduct to establish consent to arbitration, I consider it indicates Corporate Air was opposed to the Commission having any involvement in the matter. • Mr Marks sent a letter to Commissioner Spencer’s Associate dated 13 December 2023 which referred to Corporate Air “going to extraordinary lengths to exclude and avoid -- 9 of 12 -- [2023] FWC 2634 10 engaging in any discussions with the union, and to avoid the resolution of this dispute” and “we are concerned that the respondent is seeking to delay the process rather than engage in good faith”. While I consider this conduct from Corporate Air is regrettable, I do not consider it is consistent with a party that is consenting to the Commission utilising powers that it only has if both parties consent. • Corporate Air pressed its jurisdictional objection and caused a hearing to be held before Commissioner Spencer on 25 January 2023. This step was taken to try and prevent the Commission exercising any powers in relation to the dispute, including conciliating or mediating. • While I again consider the conduct is regrettable, it was apparent from the discussion that occurred around filing and hearing dates during the conference on 6 September 2023 that Corporate Air’s priority was delaying the determination of the matter for as long as possible. While that did indicate Corporate Air was under the impression the matter was proceeding to arbitration, it is also consistent with their previous conduct in attempting to oppose or delay the resolution of the dispute. • When I referred to consent arbitration during the conference on 6 September 2023, Mr Mackrell was belatedly alerted to the need for consent and promptly replied that Corporate Air did not consent to arbitration. While it is extremely regrettable, and remarkable, that this was the first occasion this position was expressly stated, it does appear to me this is the best evidence of Corporate Air’s position in relation to whether it consents to arbitration. [49] I accept the evidence Mr Marks took me to in Corporate Air’s Form F1 and other parts of the Digital Court Book where Corporate Air refers to the matter being “determined” and “heard” is consistent with Corporate Air assuming the matter would proceed to arbitration if its jurisdictional objection were dismissed. However, in the circumstances, I consider this reflects confusion from Corporate Air about whether its consent is required for arbitration, more so than it demonstrates a decision to agree to allow the Commission to exercise its arbitral powers. [50] After considering all the material, I do not consider that Corporate Air’s conduct viewed objectively demonstrates it has consented to the Commission arbitrating this dispute, either expressly or impliedly. [51] I accept the Pilots’ submission that consent given cannot then be withdrawn. However, I have concluded that Corporate Air has not consented in the first place. [52] I do not accept the Pilots’ submissions concerning estoppel or abuse of process. There is no legal impediment to a party querying the Commission’s jurisdiction to deal with a dispute at all, and then later not consenting to arbitration. This can arise in a range of circumstances including where award coverage is in dispute, when jurisdiction is queried with reference to an employee’s standing, or the example here where there is an argument about compliance with the dispute resolution procedure. I do not consider an estoppel or abuse of process can be established on the ground that a party has not refused consent to arbitration when raising any of these jurisdictional objections. -- 10 of 12 -- [2023] FWC 2634 11 [53] Based on my conclusions above, there is no jurisdiction for the Commission to arbitrate this dispute because Corporate Air does not consent to this jurisdiction being exercised by the Commission. I therefore dismiss the Pilots’ application. [54] I consider the Pilots are entitled to feel aggrieved about how this dispute has been handled. The Pilots sought assistance from the Commission back in December 2022. It is unsatisfactory that the issue of whether Corporate Air consents to an arbitration is being determined in October 2023 after significant resources were spent on behalf of the Pilots defending Corporate Air’s jurisdictional objection. I consider this case demonstrates there is considerable merit in the issue of whether there is going to be consent to arbitration being squarely raised and determined before the parties expend considerable resources dealing with jurisdictional objections. [55] I also recommend Corporate Air reconsiders its approach to this industrial issue. Despite its suggestions to the contrary, it is clear at least some of its pilots are concerned about whether Corporate Air is complying with the Award. This is a serious matter and something Corporate Air should direct resources to addressing, as opposed to trying to frustrate attempts from the Pilots to have the issue considered. As Mr Marks submitted during the hearing on 3 October 2023, the alternative to consent arbitration in the Commission is likely to be costly and time- consuming proceedings in a court. There may be merit in the parties exploring whether enterprise bargaining may provide a better avenue to address the Pilots’ concerns. Conclusion [56] Given I have found that Corporate Air has not consented to the Commission arbitrating this dispute, I dismiss the Pilots’ application. COMMISSIONER Appearances: Mr Marks for the Pilots. Mr Mackrell for Corporate Air . Hearing Details: 3 October 2023 Microsoft Teams. Printed by authority of the Commonwealth Government Printer -- 11 of 12 -- [2023] FWC 2634 12 <PR767096> 1 In accordance with s.47 of the FW Act. 2 Adann Sadiki and Others v Vee H Aviation Pty Ltd T/A Corporate Air [2023] FWC 2105. 3 Kuligowski v Metrobus [2004] HCA 34 at [22] and [32]. 4 APESMA v Airly Coal Pty Ltd [2005] AIRC 1102 and Application by Professionals Australia to vary the Health Professions and Support Services Award 2020 [2021] FWCFB 2066. 5 Page 273 of the DCB. 6 Page 26 of the DCB. 7 Page 288 of the DCB. 8 One Tree Community Services Inc v United Voice (No 2) [2020] FCA 390 at [95]. 9 Ibid at [95] citing Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471. 10 CC Pty Ltd T/A Cook Colliery v CFMEU [2017] FWCFB 2749 at [34]. 11 [2022] FWC 453 at [16] and [17]. 12 Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471. -- 12 of 12 --