Qantas

QPC Briefing No. 52 2026
Qantas LHEA11
Legal Advice for AFAP Members

A PDF version of this article is available here.

This Update is provided as confidential legal advice from the AFAP legal team (and reviewed by external counsel) for AFAP members who are considering how to vote on the proposed Qantas Long Haul EA11.

The advice relates specifically to the circumstances of the current Qantas Long Haul bargaining process. It should not be taken as expressing a general AFAP position about the use of protected industrial action, intractable bargaining or arbitration in other negotiations.

The information below is provided on a confidential and legally privileged basis and should not be distributed beyond the LH pilots to whom it is addressed without the permission of the AFAP.

The purpose of this advice is to ensure members have access to the same legal advice and assessment of risk available to the AFAP bargaining team in considering the EA11 package.

This advice is intended to provide members with a candid assessment of the alternative pathways available under the Fair Work Act 2009 (Cth) (Act), together with the legal, industrial and financial risks associated with those pathways.

Members can then take those matters into account, alongside the substantive terms of the proposed EA11, in reaching their own decision about how to vote.

Options Following a Second No Vote

1. Further Negotiation

The AFAP’s preferred approach in enterprise bargaining is to achieve an outcome through negotiation wherever reasonably possible before pursuing escalation. If pilots reject the proposed EA11, the AFAP will seek to resume bargaining with Qantas as soon as practicable. Depending on the circumstances, this may include further consultation or surveying of members to identify the matters that led pilots to reject the proposal and the changes members would require to support a revised agreement.

The AFAP would then seek to develop and put forward proposals directed at addressing those concerns. Reaching a negotiated agreement that the AFAP can recommend to members would remain our preferred outcome.

However, the present negotiations have now continued for more than two years. A further No vote would represent the second rejection of a proposed EA11 by the pilot group and, on this occasion, rejection of a package endorsed by both unions.

There can be no assurance that Qantas would make further material improvements following another No vote. If further negotiations did not produce an acceptable outcome, it is likely the AFAP would then need to consider one or more of the available escalation pathways.

2. Protected Industrial Action (PIA)

One potential escalation pathway is protected industrial action (PIA).

PIA can include bans, limitations on the performance of work and complete stoppages of work. Where all statutory requirements are satisfied, protected industrial action attracts protections under the Act that do not apply to unprotected industrial action.

The process for obtaining authorisation for, and taking, PIA is explained in Attachment 1.

PIA can be an effective bargaining tool. The AFAP has considerable experience using PIA across the aviation industry. However, it also carries financial and industrial risks for members and provides Qantas with a range of lawful response options.

One particularly important consideration is that PIA can, in some circumstances, ultimately result in the bargaining dispute being determined by arbitration.

3. Arbitration Following Industrial Action

Industrial Action Related Workplace Determination

An Intractable Bargaining Workplace Determination (IBWD), discussed below, is not the only pathway under the Act by which bargaining can result in an arbitrated workplace determination.

If PIA occurs, the Act provides mechanisms through which the Fair Work Commission (FWC) can suspend or terminate protected industrial action. In particular:

• under s 423, the FWC may suspend or terminate protected industrial action where the statutory requirements concerning significant economic harm are satisfied, together with requirements concerning the duration of the action and prospects of resolving the dispute. In the case of employee claim action, significant economic harm includes harm to both the employer and any of the employees covered by the proposed agreement;
• under s 424, the FWC must suspend or terminate protected industrial action where it is satisfied the action has threatened, is threatening or would threaten to endanger the life, personal safety, health or welfare of the population or part of it, or cause significant damage to the Australian economy or an important part of it; and
• under s 431, the Minister may make a declaration terminating protected industrial action where the statutory test concerning danger to the population or significant damage to the Australian economy is satisfied (see s 424 above).

Termination of industrial action under these provisions triggers an industrial action related workplace determination if bargaining matters remain unresolved at the end of the, generally, 21 day statutory negotiating period. Under that determination, the unresolved bargaining matters are determined through arbitration. Suspension alone does not trigger that process.

This is significant because the statutory protection in s 270A, discussed below in relation to an IBWD, does not apply to an industrial action related workplace determination.

Previous Qantas experience

Many Qantas Long Haul pilots will be familiar with this general mechanism from the previous Qantas industrial dispute in 2011.

In that matter, pilots had engaged in relatively low-level PIA, including wearing red ties and making passenger announcements while other unions in other work groups had engaged in more extensive PIA. Qantas subsequently grounded its operations arguing it was a necessary response to the PIA from the Unions, and at the same time gave notice of employer response action in the form of an indefinite lockout.

Qantas’ notified protected industrial action (the indefinite lockout) was then terminated under s.424 of the Act, on the basis of the consequences arising from the proposed lockout, including the threatened damage to the tourism and air transport industries. The termination order was made before the lockout took effect. The bargaining dispute then led to a workplace determination made in 2013.

The AFAP is not suggesting that Qantas would necessarily adopt a comparable strategy in response to future Long Haul PIA, or that the circumstances which arose in 2011 would be repeated.

However, members should be aware that the nature, scale and economic significance of Qantas’ Long Haul operations mean these statutory provisions are potentially relevant in a way that may not arise to the same extent in bargaining involving smaller operators.

The important point is that commencing PIA does not necessarily mean industrial action simply continues until one party changes its bargaining position. There are statutory pathways by which PIA can be terminated and the dispute can move into arbitration.

That possibility forms part of the overall risk assessment when considering PIA.

Intractable Bargaining Workplace Determination

AFAP members have also regularly asked what outcome might be achieved if the bargaining dispute ultimately proceeded to an Intractable Bargaining Workplace Determination (IBWD).

Members have understandably referred to outcomes obtained by employees in other intractable bargaining matters, including the Cleanaway proceedings.

It is reasonable for members to consider whether an IBWD may provide an alternative pathway to obtaining a better outcome than the proposed EA11.

The important issue, however, is to understand both the protections and the uncertainties associated with that process.

What is an IBWD?

The intractable bargaining provisions provide a statutory pathway by which the FWC can ultimately determine the unresolved terms of a proposed enterprise agreement after hearing evidence and submissions from the bargaining representatives.

This represents a significant alternative to the more traditional bargaining model, under which the FWC could generally assist parties through conciliation but could not simply impose the terms of a new enterprise agreement unless one of the separate statutory arbitration pathways was enlivened.

An IBWD therefore provides an important potential pathway to an arbitrated outcome. It is not, however, automatic.

The IBWD Process

Before the FWC can make an IBWD, a bargaining representative, which could include the AFAP, AIPA or Qantas, must first apply for an intractable bargaining declaration under s 234 of the Act.

The FWC must then be satisfied of the statutory requirements in s 235. Among other things, the FWC must be satisfied that it has dealt with the bargaining dispute under s 240 and that the applicant participated in that process, that there is no reasonable prospect of agreement being reached if the declaration is not made, and that making the declaration is reasonable in all the circumstances, taking into account the views of all bargaining representatives.

The minimum bargaining period must also have elapsed: generally nine months after the later of EA10’s nominal expiry date and the statutory commencement of bargaining. It is important to note that even if all those criteria are met, the FWC does not have to make the declaration, it’s discretionary.

Accordingly, there is no automatic entitlement to an intractable bargaining declaration simply because pilots have rejected more than one proposed agreement.

Multiple No votes will form part of the factual history of the bargaining dispute, but they do not of themselves establish that the statutory test has been met. The bargaining history as a whole will be relevant.

In previous matters, one factor considered in assessing whether bargaining had become intractable has been whether industrial action had occurred and whether it materially altered the employer’s bargaining position. In the Network matter, for example, the extensive industrial action undertaken by AFAP members formed an important part of the bargaining history.

PIA is not, of itself, a statutory prerequisite to an intractable bargaining declaration. However, if no industrial action has occurred and other bargaining options remain available, there is a risk the FWC may conclude that there remains a reasonable prospect of agreement or that it is not yet reasonable in all the circumstances to declare the bargaining intractable.

If the FWC declines to make an intractable bargaining declaration, the parties must continue bargaining and an IBWD cannot be made at that point.

Post-Declaration Negotiating Period

Even if the FWC makes an intractable bargaining declaration, that does not necessarily result in immediate arbitration.

Under s 235A, the FWC may specify a post-declaration negotiating period.

During that period, the parties continue bargaining and the FWC cannot make the IBWD. The period may also be extended by the FWC where it considers that appropriate. Protected industrial action cannot be taken while the declaration operates, including during that period.

The purpose of this process is to provide a further opportunity for the parties to resolve issues themselves and, where possible, narrow the number of matters ultimately requiring arbitration.

This can materially extend the period before a final determination is made.

Are pilots guaranteed at least an EA10 rollover plus 3% under an IBWD?

A view expressed by some pilots is that the protections in s 270A mean there is little downside risk in pursuing an IBWD because the FWC could not produce an outcome worse than simply rolling over EA10 with a 3% wage increase. That is not the effect of s 270A.

Broadly, s 270A provides that where the FWC is arbitrating a term dealing with a matter already dealt with in EA10, the new term cannot be less favourable than the corresponding existing EA10 term.

However, pursuant to s 270A(4), the statutory “not less favourable” protection in s 270A does not apply to a term providing for a wage increase. There is no requirement to repeat the wage increases provided by EA10.

Accordingly, s 270A does not guarantee pilots an outcome equivalent to EA10 plus 3%, nor does it guarantee the wage increases contained in the proposed EA11. The quantum and timing of future wage increases would be matters for the FWC to determine through the arbitration process. The relevant comparison is therefore with EA10 as it currently exists, not with a hypothetical rollover of EA10 incorporating a further 3% wage increase.

Section 270A nevertheless provides significant protection for existing EA10 conditions. The principal risk is therefore not that the FWC can simply remove existing EA10 conditions, but that pilots may undertake a lengthy arbitration process and ultimately receive an outcome much closer to the existing EA10 than the improvements presently negotiated in EA11.

For the reasons above, members should not assume that an IBWD outcome of “EA10 plus 3%” with no concessions represents a guaranteed minimum outcome.

Agreed Terms

The fact that the AFAP, AIPA and Qantas have reached an in-principle agreement (IPA) on the proposed EA11 does not mean that all terms in that package would necessarily remain “agreed terms” for the purposes of a subsequent IBWD following a No vote.

Under s 274 of the Act, whether a term is an “agreed term” is assessed at particular points in the intractable bargaining process, the first being when an application for an intractable bargaining declaration is made. Further agreed terms are captured when the declaration is made and at the end of any post-declaration negotiating period.

Before that point, a bargaining representative can generally withdraw its agreement to a previously agreed term by clearly notifying the other bargaining representatives that it no longer supports that term, subject to good faith bargaining obligations and any binding commitments. This does not require the agreement of the other bargaining representatives.

This occurred in the Network Aviation bargaining. Following an unsuccessful employee vote, Network wrote to the unions withdrawing its agreement to a number of terms that had previously formed part of the proposed agreement. As this occurred before the application for an intractable bargaining declaration was made, those terms were not treated as agreed terms for the subsequent workplace determination.

Accordingly, following a No vote, the AFAP, AIPA or Qantas could withdraw agreement to particular terms in the current EA11 package before an application for an intractable bargaining declaration is made.

Once the relevant statutory point is reached, however, terms agreed by all bargaining representatives are captured as “agreed terms” for the purposes of the IBWD. Those terms must be included, subject to the Act, and cannot then be withdrawn unilaterally. A No vote does not itself undo agreement between the bargaining representatives.

The practical consequence is that members cannot assume the current IPA establishes a guaranteed floor for an IBWD. Improvements presently secured for pilots could be withdrawn by Qantas before the relevant statutory point, just as the unions could withdraw agreement to concessions presently included in the package. Concessions still agreed when an application is filed may therefore be included despite a No vote.

Time to an Arbitrated Outcome

A further consideration is timing. Once an intractable bargaining application is made, the timetable is substantially influenced by the FWC process, including hearings, evidence, submissions, any post-declaration negotiating period and the eventual arbitration of unresolved matters.

The Network IBWD process took approximately 18 months from the initial application to final determination.

The Qantas Long Haul agreement is substantially larger and more complex than the agreement considered in that proceeding.

It would therefore not be prudent to assume that a Qantas Long Haul IBWD could be obtained quickly.
Members should allow for the possibility that the process could extend well beyond 12 months, with the actual timing substantially outside the control of the bargaining representatives.

Backpay

Members should also not assume that an IBWD would preserve the backpay or backdating presently available under the proposed EA11.

Any retrospective financial outcome would ultimately depend upon the terms determined by the FWC.

The proposed EA11 specifies the proposed financial outcome, subject to employee and FWC approval. By contrast, an IBWD would create uncertainty about both the amount of any wage increase and the extent to which any financial increase would operate retrospectively.

Accordingly, the backpay presently proposed from 13 July 2026 would be at risk, and there is no guarantee that the initial uplift would reflect the period since the last wage increase in July 2024.

The Network determination illustrates this risk. Despite pilots having experienced a lengthy period without a wage increase, the determination provided only 12 months of backpay.

That does not dictate what the FWC would do in the Qantas Long Haul circumstances, but it demonstrates why members should not treat retrospective payment as guaranteed.

Comparison With Other Arbitrated Outcomes

Members have understandably referred to outcomes in other industries and aviation bargaining disputes when considering what might be achieved through an IBWD.

It is important to be clear that the substantive outcome of an IBWD in another bargaining matter does not determine the outcome for the Qantas Long Haul EA11.

An IBWD made in another matter does not bind the FWC to award the same or a comparable wage increase, backpay outcome, work rule or other condition in a subsequent proceeding.

Each IBWD turns on its own facts, including the particular bargaining history, the claims advanced by the parties, the terms of the existing enterprise agreement, the evidence presented and the statutory considerations applying to that dispute. As the determination of terms not agreed is somewhat discretionary, the determination would also turn on how the commission member who hears it considers the materials before it. Different commission members often see matters through a different lens.

Previous decisions may provide some guidance as to the approach taken by the FWC to particular legal or industrial issues. However, the result achieved in another IBWD does not dictate the result in this bargaining dispute.

Accordingly, pilots cannot assume that an outcome achieved in Cleanaway, Network or any other IBWD would be replicated, either in whole or in part, in a Qantas Long Haul arbitration.

This is particularly important when comparing wage outcomes. A percentage wage increase awarded in another IBWD provides no entitlement to an equivalent increase or guaranteed minimum outcome for Qantas Long Haul pilots.

The AFAP’s assessment of the decisions to date is also that arbitration creates a risk that the ultimate determination will be more conservative than an outcome that can be achieved through negotiated trade-offs between the parties.

That is particularly relevant to a number of material improvements negotiated in the proposed EA11, including:

• The significant uplifts to C scale SO remuneration and alignment of SO pay scales;
• The blank line reforms, notably:
  • divisor pay protection;
  • 12-hour passive payment per BL; and
  • standby 0.5-hour passive payment
• Improved A350/B787 remuneration
• Improved fatigue settings for the A350
• High priority X days during blank lines
• Golden leave days increase (including access to 3 days during a BL)
• Increases in flexi-line minimum access from 4% to 8%
• Minimum seating standard for positioning - sectors of six hours or longer, a lie-flat seat is required.
• Adelaide transport boundary - a boundary of 40km in radius measured from the Adelaide Airport Terminal but not extending beyond the coast line.
• Public transport allowance increase - when outside a port with a home transport boundary, the allowance has increased from $55 to $75.
• Bid Line Construction - Wider Std Window, increased Standard Window (-5 to +10)
• Improved Freeze periods for promotion on type - if promoting on type, the freeze period is now 2 years, reduced from 4 years as it is in LH EA10.
• Improved Freeze periods for A330 to A350 movement:
• Captain and First Officer freeze period when moving from an A330 category to an A350 category, or from an A350 Category to an A330 Category, reduced to 2 training blocks (currently 4 training blocks).
• One training block freeze for A330 Second Officer to A350 Second Officer.
• Two holding leave days pre allocated for Medicals
• Increased MBTT/MPG MBTT - for international patterns that currently attract 1 local night, increase to 2 local nights if night hours are greater than or equal to 6 hours (i.e. 3 day international patterns).
• SO lounge access Highest category of lounge while on duty travel for S/Os >5 years of service
• 42Y FOC ticket upgradable Annual 42Y FOC ticket upgradable from calendar year 2026
• Classroom training payment of MDC for up to 7 hours of classroom training (exclusive of breaks) and 1 hour for each hour thereafter.

Those improvements have been negotiated as part of an overall package. There is no guarantee that each would be reproduced through arbitration.

The same uncertainty applies to Qantas.

For example, Qantas could not assume that an IBWD would deliver all of the concessions it has obtained through the negotiated package. The removal of the existing first-class travel entitlement on the A350 is one example.

When considering that particular concession, the AFAP asks members to assess the value of the existing entitlement against the broader value of the package obtained in return. Members should consider the practical frequency with which the entitlement would be used and weigh that against the financial and other improvements contained in the proposed EA11.

Key Issues with the IBWD Pathway

In summary:

• there is no automatic entitlement to an IBWD merely because pilots have rejected more than one proposed agreement;
• before arbitration can occur, the FWC must first be satisfied that the statutory requirements for an intractable bargaining declaration have been met;
• depending upon the bargaining history, further industrial action or other bargaining steps may be necessary before the FWC is satisfied there is no reasonable prospect of an agreement being reached;
• even after an intractable bargaining declaration is made, the FWC may extend the time to an outcome through a post-declaration negotiating period;
• the process to finalise the determination will be lengthy. The Network proceeding took approximately 18 months from application to final determination, despite involving a substantially less complex agreement;
• the status of the terms presently contained in the EA11 in-principle agreement as “agreed terms” cannot simply be assumed following a further No vote;
• backpay is not guaranteed, either to 13 July 2026 or to the earlier commencement of the period without wage increases;
• previous arbitration outcomes do not guarantee an equivalent result for Qantas Long Haul pilots;
• pilots do not vote on the final terms of an IBWD. Once made, the workplace determination establishes the terms applying to the employees it covers; and
• there is therefore a real risk that important improvements presently contained in the negotiated package may not be reproduced through arbitration.

An IBWD would also require a substantial commitment of resources. That does not present an impediment for the AFAP. The AFAP is financially resourced to conduct an IBWD proceeding, including through expert evidence, in-house counsel and external solicitors and barristers.

Our concern is therefore not the AFAP’s capacity or willingness to run the case if that becomes necessary. The concern is the uncertainty inherent in the process and whether this risk is preferable to the negotiated outcome before pilots.

There is no guarantee that arbitration would produce a better overall outcome than the negotiated package presently before members. There is a real risk that, after a lengthy process, the ultimate determination could be materially closer to a rollover of existing conditions than the package currently available, with no certainty of backpay for both the time spent negotiating or the length of the determination process.

That outcome may preserve particular existing entitlements, including first-class travel, but potentially at the cost of significant financial and other improvements presently contained in the proposed EA11.

Conclusion

Each of the available escalation pathways carries risk. Those risks should be considered by AFAP members as one part of their overall assessment of the proposed EA11.

Different members will understandably assess those risks differently depending upon matters including their stage of career, current classification, anticipated career progression and personal financial circumstances.

In a pilot group of this size, there will inevitably be different views about the appropriate balance between accepting a negotiated outcome and pursuing the possibility of further improvements.

We ask members to consider the agreement as a collective instrument. Particular provisions may not directly affect every pilot, but they may be of significant importance to particular group of pilots. The potential consequences of a further No vote should therefore be considered across the pilot group as a whole.

Since the previous No vote, a number of important matters have been addressed through further bargaining.

In the AFAP’s assessment, EA9 and EA10 resulted in an overall deterioration in a number of Long Haul pilot conditions. The proposed EA11 begins to move conditions forward again.

The proposed EA11 does not achieve everything the AFAP sought, nor could this bargaining round reasonably be expected to reverse every issue arising from previous negotiations. However, the current package makes material progress on a number of the issues pilots have consistently identified as requiring improvement.

A Yes vote provides certainty that the negotiated terms and financial outcomes in the proposed EA11 will be implemented.

A No vote does not mean that a better outcome is impossible. It does, however, move the bargaining process into a materially less certain position. Further negotiation may produce additional movement, but escalation through PIA or arbitration carries the legal, financial and timing risks outlined above.

This advice is provided so that members can make their own informed assessment of those risks alongside the substantive benefits and concessions contained in the proposed agreement.

Members should carefully consider all of those matters in determining how they vote. The AFAP has negotiated hard to secure the strongest possible outcome for members and is recommending EA11 on the basis that the proposed package represents the best outcome having considered all the relevant factors.

AFAP Legal Representatives
Jared Marks – AFAP Counsel
Patrick Larkins – AFAP Senior Legal/ Industrial Officer
Deanna Cain – AFAP Senior Legal/ Industrial Officer