Re Flight Crew Officers Industrial Tribunal; Ex p Australian Federation of Air Pilots [1971] HCA 58

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Owen JJ. Re Flight Crew Officers Industrial Tribunal; Ex p Australian Federation of Air Pilots [1971] HCA 58

ORDER Application dismissed. Order nisi discharged. Prosecutor to pay the costs of Qantas Airways Limited.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 18 Barwick C.J.

The Australian Federation of Air Pilots ("the Federation") seeks an order making absolute an order nisi granted by a Justice of this Court on 22nd October 1971 for the issue of a writ of mandamus directed to the Flight Crew Officers' Industrial Tribunal ("the Tribunal") "commanding it to consider and determine an industrial question between the Australian Federation of Air Pilots and Qantas Airways Ltd. submitted to it by the prosecutor pursuant to notification of dispute dated 21st September 1971 and numbered T. 17 of 1971". The Federation is a declared body within the meaning of Pt IIIA of the Conciliation and Arbitration Act 1904-1970 ("the Act"), having been duly declared by the Minister for Labour and National Service to be a body to which s. 88Z of the Act applies. The members of the Federation include airline pilots employed by Qantas Airways Ltd. ("Qantas"). The terms and conditions of employment by Qantas of airline pilots are prescribed by Airline Pilots (Qantas) Award 1970 ("the Award"). Section 5 of the Award entitled "Contract of Employment" contains two provisions relevant to the discussion of the matter before the Court:

a. The services of a pilot shall be terminable by either the Company or the pilot:

(i) during the first twelve months of service or during any extended period of probation by fourteen days notice in writing; or

(ii) thereafter by twenty-eight days notice in writing; or