FEDERAL COURT OF AUSTRALIA
Regional Express Holdings Ltd v Australian Federation of Air Pilots
[2016] FCAFC 147
Appeal from:
Australian Federation of Air Pilots v Regional Express Holdings [2016] FCCA 316
The respondent (AFAP) alleged that the appellant and itself were bound by the terms of the Regional Express Pilots’ Enterprise Agreement 2011 (“the enterprise agreement”), an enterprise agreement made and approved under Pt 2-4 of the FW Act. It alleged that cl 58.1 of the enterprise agreement required the appellant to provide a pilot with “appropriate accommodation” when absent from his or her base on layover, and that “appropriate accommodation” was defined in cl 3.4 thereof in the following terms:
Appropriate Accommodation means accommodation which is, as a minimum, clean, quiet and free from factors which may reduce adequate rest and must provide a separate room incorporating ensuite bathroom facilities for each Pilot, with air conditioning and or heating as appropriate to the area. Such accommodation will be assessed as per the most recent Dawson’s Hotel Guide Book or other guide as agreed by the Rex PC at not less than a 3 star standard for non-capital cities and 4 star standard for capital cities.
From the Australian Airlines Pilot Academy (AAPA) website:
AAPA strives to ensure that all its students are comfortably accommodated in its brand new on-site modern facilities while they undergo many months of rigorous residential pilot training. For greater privacy, all students are housed in individual rooms (air-conditioned) with a wash basin. Toilets and showers are communal but provide privacy.
It was alleged in the case that the AAPA was not appropriate accommodation for the purposes of the enterprise agreement [due to the communal shower facility]
So REX commits to an EA and then here's what it does (in WRITING, no less):
On about 5 September 2014, the Respondent advised shortlisted applicants for the cadet program (prospective employees) in writing that:
a. “many” former cadets had made promises in order to be selected for the program, but, once selected, they very quickly “show their true colours”.
b. some previous cadets, once employed by the respondent, refuse to stay at the AAPA whilst on overnight Layovers and instead insist on staying at the local motel, and as such, are “totally lacking in integrity”.
c. the respondent will not allow any pilot lacking in integrity to hold a command.
d. the respondent will not consider any such pilot to be suitable for entry into the PICUS program, which is a pre-requisite to holding a command.
Ironically the integrity referred to here is on behalf of the trainees, NOT the organsation that signed the EBA...
Further, REX (in WRITING yet again) makes the trainees write a letter and make “solemn promises” (explicitly to stay at the AAPA, rather than a motel with a private en suite):
On about 5 September 2014, short-listed applicants for the cadet program (prospective employees) were advised by the respondent in writing:
a. that their selection into that program was dependent on the provision and content of a hand-written ‘motivation’ letter;
b. that the motivation letter was to include “solemn promises” to undertake various activities and actions in the event of employment;
c. that the ‘solemn promises’ should include an undertaking to stay at the AAPA whilst on overnight layovers, and not to insist on the provision of appropriate accommodation in accordance with the workplace right.
On about 5 September 2014, prospective employees, including members of affected class two, were advised by the respondent in writing that:
a. if ultimately employed by the respondent, they would be expected to honour the ‘solemn promises’ made in the motivation letter described above … including the promise to stay at the AAPA whilst on overnight layovers.
b. in the event that the undertakings provided for in the motivation letter were not honoured once employment commenced, the respondent “reserve[d] its right to respond accordingly.”
I wonder if a “solemn promise” is as binding as a EBA? How arrogantly was REX's contempt for the EBA displayed by their actions?
Why did REX fail to build en suites at AAPA?
Because they didn't have to...
They could attempt to force employees to breach the conditions of the EBA, but they couldn't force employees to breach, even if those employees weren’t members of AFAP.
REX attempted to appeal against the fact that it's employees weren't members of AFAP, so AFAP could not represent them.
So they (REX) attempt to force FUTURE cadets to promise to allow REX to breach the EBA.
Great to see these arrogant companies get their comeuppance in the courts.
One wonders if the legal costs would exceed the actual costs of REX complying with the EBA?
How can employers get away with these actions, you may ask? Only if the employees let them.
Remember they can't operate the organisation without employees...
here's the link to the Jugement:
https://jade.io/article/498349