Australian and International Pilots Association v Qantas Airways Limited [2017] FCA 346

FEDERAL COURT OF AUSTRALIA

Australian and International Pilots Association v Qantas Airways Limited [2017] FCA 346 Appeal from: Australian & International Pilots Association v Qantas Airways Limited [2016] FCCA 2604

File number: NSD 1888 of 2016

Judge: RARES J

Date of judgment: 22 February 2017

Catchwords: INDUSTRIAL LAW – Fair Work Act 2009 (Cth) – enterprise agreement made between employer, employees and employee organisation under s 172 and approved under s 186 – construction of enterprise agreement – where enterprise agreement negotiated by employer and employee organisation and subsequently approved by employees and Fair Work Commission under Fair Work Act – whether Court can have regard to alleged subjective intention of some negotiating parties in relation to term not agreed – use of objective theory of contract, in industrial and commercial context, in construction of industrial agreements or enterprise agreements EVIDENCE – admissibility of evidence – negotiations for enterprise agreement – where disagreement between employer and employee organisation over proposed wording in clause – where proposed wording not included in final version of agreement voted on and approved by employees – whether omission of proposed wording in final agreement evidence of common intention of negotiating parties – whether question of admissibility of evidence be decided at time of tender

Legislation: Fair Work Act 2009 (Cth) Subdiv B Div 4 Pt 2-4, Pt 2-4, ss 172, 182, 186

Cases cited: Australian and International Pilots Association v Qantas Airways Limited [2013] FWCFB 317 Codelfa Construction Pty Limited v State Rail Authority of New South Wales (1982) 149 CLR 337 Cohen v iSoft Group Pty Ltd (2013) 298 ALR 516 Commonwealth Bank of Australia v Barker (2014) 2253 CLR 169 Concut Pty Ltd v Worrell (2000) 176 ALR 693 Health Services Union v Ballarat Health Services [2011] FCA 1256 Kucks v CSR Limited (1996) 66 IR 182 L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 Toll (FGCT) Pty Limited v Alphapharm Pty Limited (2004) 219 CLR 165 Zhu v Treasurer of New South Wales (2004) 218 CLR 530