It seems that the AFAP, according to a widely distributed email, has had some success in the Federal Court against Regional Express and an intimidating letter sent out to cadets in September 2014.
Since last April, the AFAP has been involved in legal proceedings against Regional Express. Last week, a key decision was handed down in our favour.
The case centres around a letter sent by the Chief Operating Officer of Rex to applicants for their Cadet Program (attached). It requests that they commit to being ‘fiercely loyal and company-minded’ and to go ‘way above and beyond the call of duty’. It also mentions specific EBA conditions that applicants can opt out of to prove their allegiance to the Company. It then (alarmingly) states that ex-cadets who have accessed certain conditions are lacking in integrity, and suggests that they will therefore not be considered for command positions.
In the AFAP’s view, these threats amount to unlawful adverse action under the Fair Work Act, against both prospective cadets and graduates of that program. The AFAP therefore commenced proceedings in the Federal Circuit Court of Australia in its own name. Understandably, given the circumstances, affected members were reluctant to identify themselves.
In response to the claim made by the AFAP, Rex instructed its lawyers to make an application to have the AFAP’s claim struck out. This was on the basis that it failed to identify any particular person against whom the adverse action is said to have been taken, and that the AFAP lacks standing to bring the proceedings at all.
Rex’s strike out application was heard by Riethmuller J on 12 November 2015. On 17 February 2016, judgement was handed down dismissing Rex’s application. Riethmuller J’s reasons are attached.
The AFAP will now proceed to argue the substantive issues, in particular, whether the threats contained in the letter to prospective cadets amount to unlawful adverse action. If this is ultimately successful, Rex may be ordered to retract the letters and pay civil penalties.
As far as we are aware, this decision is the first analysis of the ability of a union to bring proceedings where it did not have to demonstrate that members were affected by the alleged contravention. In the past, this issue appears to have been taken for granted, such that it had never been fully argued before. Accordingly, the decision represents an important judicial pronouncement on how the AFAP, and unions in general, are able to enforce industrial standards.
Further, it is important in that individuals do not always have to be named in such proceedings and therefore further restricts an employer’s ability to retaliate against an employee (although there will be times when an employee must be named at some point in a proceeding).
We will continue to update you with what the AFAP is doing from a legal perspective. In the meantime, please don’t hesitate to contact the AFAP on (03) 9928 5737 with any work-related legal issues.
Yours sincerely
Captain David Booth
President
The Australian Federation of Air Pilots
