2013 FCCA 592 AUSTRALIAN LICENCED AIRCRAFT ENGINEERS ASSOCIATION v QANTAS AIRWAYS LIMITED
25 June 2013 2:16pm
The ALAEA has lost its challenge to Qantas's introduction last year of a line maintenance system that requires fewer checks on newer aircraft and that led to the redundancy of 30 LAMEs.
The Federal Circuit Court, however, found the airline breached the parties' workplace determination in deciding to make the LAMEs redundant without consulting with the union, and in not providing relevant information during the later consultation process.
Judge Kenneth Raphael, in a 91-page decision handed down yesterday, held that the airline's implementation of "maintenance on demand" (MoD) for its Boeing 737-800 and Airbus 330 aircraft operating on domestic routes didn't breach the "job-security" clause (clause 11) in the parties' consent workplace determination reached after their dramatic 2011 bargaining round (see Related Article).
He said the phrase that "Qantas commits to retain the existing engineering and maintenance functions of employees covered by this workplace determination" was not a commitment to "setting the current work practices and functions of LAMEs in amber".
"It seems to the court that the words are wide enough, within their context, to allow for the changes proposed by MoD. It is to be remembered that the implementation of MoD in its current form does not actually remove any functions from LAMEs. It cuts down their frequency."
Judge Raphael continued that the clause made no mention of redundancy or maintaining job numbers and "one would have expected it to if it were to have the meaning ascribed to it by the ALAEA".
"'Job Security' cannot be defined as the maintenance of existing numbers and tasks. 'Job Security' encompasses the continued employment of an engineering workforce. The clause itself seeks to address that by requiring a commitment from the employees to cooperate on issues in improving productivity and efficiency and overall profitability. It is only in that way that real job security, meaning the continued employment of engineers can be maintained."
Judge Raphael also noted that the aircraft in question, "whilst being more modern than much of Qantas' fleet, have been utilised for some years" and the manufacturer's recommendation on line maintenance had been implemented by most other airlines using those aircraft for some time.
"In summary, the court is of the view that the clause is clear in its terms; taken within its context, in particular its juxtaposition to clause 12, it constitutes a commitment by Qantas to retain an engineering and maintenance capacity within its own organisation. The court does not believe that the clause will permit the closing down of Qantas' engineering and maintenance divisions and their outsourcing to another entity or entities unless this was a matter beyond Qantas' control.
"In order to allow Qantas to maintain these functions, the employees covered by the agreement must accept work practice changes which improve productivity, efficiency and overall profitability. MoD is one such change."
Before MoD was introduced in June last year, all aircraft in the Qantas fleet received a "Check 1 procedure", carried out by LAMEs, whenever they landed in a port. Under MoD, the Boeing 737-800 and Airbus 330 fleet are given a Check 1 only for the first flight of the day and for flights where the aircraft would be as some point more than one hour's flying time on one engine from the nearest appropriate airport.
Qantas chief Alan Joyce made public the MoD and redundancy decisions when he announced the airline's half-yearly results in February last year (see Related Article). Qantas introduced MoD in June, leading to the ALAEA taking industrial action (see Related Article).
Qantas breached consultation requirements
The ALAEA also argued that Qantas breached the consultation requirements in the "introduction of change" clause (47) in the parties' workplace determination in making the 30 LAMEs redundant.
Judge Raphael said to the extent that the ALAEA was seeking to argue that Qantas had to provide it with an opportunity to persuade it not to go ahead and introduce MoD, "it is one that the court must reject".
He said the clause was clear that "no consultation commences until a decision has been made. The consultation that is envisaged by the agreement is on the matters set out in clause 47.2.1 and is essentially consultation in order to avert or mitigate the prejudicial effects of the decision that had already been made."
But, he continued, consultation was required on implementing the MoD, which included "any decision relating to the effects of that implementation such as redundancies" - and Qantas had breached that requirement in its decision to make the 30 LAMEs redundant.
He said he was satisfied that the redundancies were "a foregone conclusion, regardless of the consultation process that would occur".
"I believe that Qantas approached the consultation in regards to redundancies as a means to assess who would be willing to make themselves voluntarily redundant and to inform LAMEs of their rights and opportunities in this respect.
"Consequently, even though the ALAEA approached the consultations in a negative manner, due to their belief that the decision to implement MoD had itself been incorrectly made, I am satisfied that Clause 47.2.1 was breached in that Qantas did not genuinely consult with the [ALAEA] in regards to the decision to make 30 LAMEs redundant, that being an effect of the introduction of MoD on employees."
Judge Raphael continued that his finding was of a "restricted nature" given Qantas didn't fail generally to consult, and made a genuine effort to do so on other matters, "including, importantly, methods of mitigating the effect of the redundancies".
The union also maintained Qantas breached clause 47.2.3 of the workplace determination in 17 instances by failing to provide relevant information on the effect of implementing MoD.
Judge Raphael agreed on two counts only, finding both a document described by the ALAEA as a "succinct summary of the project" and information on future labour needs should have been provided.
Judge Raphael said he would hold a further hearing on penalty for the consultation and information breaches – "the first of which seems to be clearly more serious than the second".
He noted that a party to a workplace determination that contravened a provision of it was in breach of s280 of the Act, which was a civil penalty provision to be dealt with under Part 4-1.
Judge Raphael also dismissed the union's application for pecuniary penalties over the company's announcement in November last year that up to 204 positions from line maintenance in Sydney and some 263 from its heavy maintenance facility in Avalon, near Melbourne, were to be made redundant.
He said he was not satisfied that the further redundancies related to the introduction of MoD, nor that if the 30 earlier redundancies hadn't occurred the following round would have been smaller.
A Qantas spokesperson in a statement said MoD had brought the company into line with aircraft manufacturer guidelines and with other airlines, including Virgin Australia and Jetstar.
"Modern aircraft have sophisticated systems which alert us to mechanical issues meaning engineers don't need to check the aircraft before every single domestic flight.
"Our cars don't get repaired the same way as they did 20 years ago and the same goes for our aircraft.
"This change has meant that highly skilled engineers are spending more time and skills where they are needed most instead of doing checks that are not required.
"Qualified and appropriately trained pilots will continue to perform a pre-flight check prior to each flight departure and an engineer will be assigned to every aircraft that needs a check performed, as per the CASA-approved system of maintenance."
ALAEA federal secretary Steve Purvinas was unavailable for comment this morning.
ALAEA v Qantas Airways Limited [2013] FCCA 592 (24 June 2013)