At the outset, I wish to state that this post is neither for or against either a pilot's or employer's point of view; however, I think it is time to place both employers and employees on notice with regard to the law of "unjust enrichment" "unconscionable conduct" and the equitable remedy of "restitution".
Whilst this is a complex and dynamic area of law I offer the following simplification to raise awareness amongst air pilots and their employers but with the following caveat: In any legal matter, always seek legal advice from a qualified legal practitioner!
If a relationship is entered into or established through conduct between two parties and one of those parties takes from the other a valuable benefit such as, for the sake of argument, an aircraft type rating there arises an implication that the party providing the valuable benefit will receive adequate compensation in return for the provision of that benefit. In the case of an employer/employee relationship the employer would reasonably expect a fair return of service for benefits granted or gained beyond the normal expectations of the employment agreement i.e the provision of labour.
If an employee were to take a benefit from an employer, such as a type rating, and then elect to leave the employment without giving a reasonable return of service to the employer, the doctrine of unjust enrichment could be relied upon by the employer to launch legal proceedings against the former employee notwithstanding the fact that the Air Pilots Award (the Award) states that the employer is required to provide the training at its expense.
Taking a substantial benefit in the form of a type rating or other significant expensive enhancement to your licence and qualifications which are, after all, a personal qualification not belonging to the employer and then figuratively thumbing your nose at the employer and saying "so long and thanks for the free expensive endorsement but you can't touch me because I'm protected by the Award" could very well provoke an employer to utilise unjust enrichment as a cause of action in a law suit to recover for loss and damage suffered and seek resitution for monetary loss caused by the unfair behaviour.
Whilst I am not aware of any legal proceedings affirmatively or otherwise settled or as yet launched against an employee (by an employer engaged in the business of general aviation) for unjust enrichment and restitution, any pilot who thinks they are immune from such a suit should seek legal advice.
From a legal and equitable perspective, in my view, pilots contemplating leaving their employ without giving a fair return of service after taking advantage of a substantial enrichment granted by their employer should act cautiously. Furthermore, if you take advantage of the award provisions which enrich you at the employer's expense, knowing that you are not going to give a fair return of service you leave yourself open to legal action by the employer notwithstanding the award provisions. Indeed, knowingly taking financial advantage of your employer could be construed as a fraud and therefore criminal in nature.
In extreme cases of abuse by the employee of the employer's Award obligation to provide training and or qualifications the employer could well and perhaps should, seek restitution from the employee for unconscionable conduct.
The employer/employee relationship works both ways and Awards are still subject to the common and equitable laws of Australia and courts of competent jurisdiction will seek to balance the rights of all parties to a legal proceeding.
So if you, as an employee, enrich yourself by taking a benefit from your employer and don't give a fair return of service or engage in unconscionable or criminal conduct, award or no award, you should beware!
If you are an employer, don't think this area of law gives you a right to abuse the award system or treat employees unfairly because as the law of equity requires; if you want equity then do equity!