Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor [2011]
Flying Kangaroo made worker call Australia home: Court
11 February 2011 5:26pm
Qantas coerced and took adverse action against an employee who complained about underpayments when a manager verbally intimidated him and deprived him of the opportunity to apply for overseas postings, a court has ruled.
Federal Magistrate Kenneth Raphael found the employee, a licensed aircraft engineer and ALAEA member, had been subjected to the unlawful treatment on his return to Brisbane from a six week posting at Japan's Narita International Airport.
The employee gave evidence, accepted by the court, that he put to Qantas manager Peter Cawthorne that he was entitled to additional RDOs to make up for an extra 126 hours he had worked in Narita over and above the Brisbane roster.
Cawthorne in a series of emails questioned the basis for the employee's claim and why previous employees posted to Narita hadn't raised the issue, culminating in a "heated" phone call between the two on March 8 last year.
Federal Magistrate Raphael said he preferred the employee's account of the call, including that Cawthorne initially adopted an aggressive tone and "as the call progressed, it quickly changed to hostile as he was yelling at me".
Significantly, the court also accepted the employee's evidence that the manager had said: "The guys who go away and accept the conditions that they are given are the ones who get asked to go away next time".
Two other employees who were with the licensed engineer at the time also testified that Cawthorne sounded agitated during the conversation.
On March 26 the employee sent an email to Cawthorne, copied to other senior Qantas executives, notifying them that he wanted his claim dealt with under the dispute resolution procedure under the ALAEA/Qantas EBA 8.
The following day, with the employee's claim still unresolved, the two senior executives decided to suspend all international postings for licensed engineers out of Brisbane.
The executives testified that they made the decision to avoid disadvantaging other employees who went on postings, but Federal Magistrate Raphael found their evidence unpersuasive.
It was undermined by two emails Cawthorne sent to employees who were due to go on postings.
In the first, he said: "All overseas postings out of Brisbane have been cancelled because the company is in dispute with [the employee] and this will be the case until the dispute is resolved".
And in the second, which the executives were copied into but failed to clarify or correct, he said: "one of your fellow LAMEs has chosen to raise a grievance with the ALAEA in relation to a posting to NRT which he is quite entitled to do, however, as such, until the grievance is resolved or withdrawn, we cannot expect anyone else from BNE to commence an overseas posting".
On April 21 ALAEA launched legal action on behalf of the employee against Qantas and Cawthorne. On April 27 the airline rescinded the ban on Brisbane licensed engineers going on overseas postings.
"Intimidating" phone call and threat coerced employee
The union alleged Qantas and Cawthorne had engaged in several breaches of the Fair Work Act's general protections provisions, particularly:
* s340 (prohibiting actual or threatened adverse action against an employee in relation to a workplace right); and
* s343 (prohibiting actual or threatened action taken with the intention to coerce an employee in relation to a workplace right).
Federal Magistrate Raphael found that Cawthorne had adopted an "intimidating manner" during the phone call and made a "veiled threat" that the employee would be denied further postings if he persisted with his claim.
In attempting to exert "illegitimate pressure" on the employee to drop his claim and demonstrating an intention to coerce him to do so, Cawthorne (and therefore Qantas) had breached of the Act's s343, he found.
However, he rejected the union's argument that the phone call constituted adverse action contrary to s340 because Cawthorne had verbally abused the employee for exercising his right to utilise the dispute procedure.
"I think it would be difficult to describe the conversation. . . as abusive because I do not think it was insulting or unkind to [the employee]," he said, and continued that it had not otherwise injured the employee in his employment.
Federal Magistrate Raphael said it might have been open to make the alternative finding that the phone call "prejudicially altered" the position of the employee because "it had reduced his status in relation to his colleagues and upset him".
However, the union's pleading had been confined to whether an "injury" had occurred and on that point it failed, he said.
Posting ban constituted adverse action
The union also successfully argued that Qantas engaged in adverse action against the employee when, via the executives, it decided to ban international postings for Brisbane licensed engineers.
Federal Magistrate Raphael found that Qantas had failed to displace the presumption – raised as a result of the reverse onus imposed by s360 - that the employee's claim was at least part of the reason for the suspension.
The airline attempted to argue that the ban had not injured or prejudicially affected the employee because, having just returned from a posting, he had gone to the bottom of the list and could not have secured another posting while the ban was in place.
But Federal Magistrate Raphael said: "I do not think that is a correct way to articulate the test".
The opportunity to apply for postings was a benefit provided to the employee as an licensed engineer, he said, but as a result of the suspension he was deprived of that benefit.
"When the suspension was put in place, there was no temporal limit, whatever [the executive's] intentions may have been.
"To my mind, his employment was adversely impacted by the decision and he was thereby injured or, at the very least, had his position altered to his prejudice," he said.
On the union's contention that the ban also constituted unlawful coercion, he said the authorities required it to establish that Qantas had tried to put the employee "in a position where he has no choice and intending that result".
In this case, he said, it appeared the airline had intended to give the employee a "slap on the wrist" for what had occurred rather than to compel him to drop his claim.
"Thus it would be difficult to define the action as one that was intended to negate choice as opposed to being one intended to influence or persuade or induce," he said.
Federal Magistrate Raphael also rejected the employee's argument that his failure to win a promotion to a job in Toulouse, France, involved adverse action.
He accepted the party's submission that penalties should be determined at a further hearing and said he would make directions on February 16 to set down a date.
Decision shows benefit need not be immediately available: lawyer
Maurice Blackburn senior associate Giri Sivaraman, who acted for the ALAEA and the employee, said Qantas had reacted in a "knee-jerk fashion" to the employee's claim.
He said it was significant that Federal Magistrate Raphael had found that the ban on postings had been detrimental to the employee even though it was unlikely he would be able to take advantage of it in the near future.
"The Court recognised that a benefit, even if it is not immediately available but may be at some time, is still a benefit in your employment that is protected," he said.
Sivaraman said it was also noteworthy that, despite the high threshold the authorities had set for establishing coercion, the Court had found intimidation and threats conveyed over the phone could satisfy the test.
Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor [2011] FMCA 58 (11 February 2011)