Australian Federation of Air Pilots v Leach Aero Services Pty Ltd

[1988] FCA 439

CATCHWORDS

Industrial law - award - breach - right of entry - factors in mitigation of penalty - recipient of penalty.

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Conciliation and Arbitration Act 1904 s.119, S.882,

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s.88V(l)(e)

Pilots (General Aviation) Award 1984 cl. 9, 21, 22	i
Helicopter Pilots (General Aviation) Award 1984 cl. 21, 26.

AUSTRALIAN FEDERATION OF AIR	PILOTS v. LEACH A E R O	SERVICES
PTY. LTD.
No. V8 of 1988
GRAY J. MELBOURNE 24TH JUNE 1988

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IN THE FEDERAL COURT OF AUSTRALIA ) )

VICTORIA	DISTRICT	REGISTRY	)	No. V8 of 1988
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INDUSTRIAL DIVISION	1
BETWEEN:

AUSTRALIAN FEDERATION OF AIR PILOTS Applicant

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LEACH A E R O SERVICES PTY. LTD. Respondent

JUDGE: Gray J.

PLACE: Melbourne

U: 24th June 1988

EX " P O R E REASONS FOR JUDGMENT

This is an application pursuant to s.119 of the

Conciliation and Arbitration Act 1904 ("the Act") wherein the

applicant claims penalties for breaches of awards. The

applicant is, and has been since 1st October 1986, an t

organization registered pursuant to the Act. Prior to that

time, it was a declared body under s.88Z of the Act.

The two awards concerned are awards of the Flight

Crew Officers Industrial Tribunal, made pursuant to Part IIIA

of the Act. They are the Pilots (General Aviation) Award r

1984 and the Helicopter Pilots' (General Aviation) Award
1984. By virtue of s.88V(l)(e) of the Act, those awards are

to be treated as awards for the purposes of other provisions

of the Act, including s.119.

The relevant provisions of the Pilots (General

Aviation) Award 1984 are as follows:

Duty and flight time records

each pilot shall be required to keep a

progressive record of his duty and flight
times, using duty and flight time record
forms which shall be provided by his

employer, in or similar to the format

shown in appendix 2;

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the pilot's record	shall be signed at the
end of each calendar month	by the pilot

and the employer or his representative

and shall be maintained or made available

by the employer at the pilot's base for a

period of 7 years or the duration of this

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award, whichever is the greater pePiod."

"21. Right of entry

duly accredited representatives of the	i
Federation shall be entitled to enter	an

employers premises at mutually convenient

times during normal business hours and

shall without unduly interrupting an

employers operation, afforded be

reasonable facilities for so entering to

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discuss matters of federation business	I .
with pilots and to investigate matters

relating to the application of this

award;

when pursuant to subclause (a) of this

clause, a federation representative is

investigating a matter relating to the

application of this award, he shall be

permitted to take notes from or make

copies of the employers relevant records	i
or documents;	.,

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it shall be understood that the parties	i
shall, at all times, adopt a	reasonable

and co-operative attitude in relation to . .

the objectives of this clause and shall

have the right to request the assistance

the of tribunal in relation to

frustration or abuse of such objectives."

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"22. Salary records	..
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(a) each employer shall keep up to date

records in respect of each pilot in his

employ, showing the pilot's award

classification, gross salary, all

allowances, all additions to salary, all	i
deductions and net salary;	, ,.

(b) the records referred to in subclause (a) I,)

of this clause shall be maintained or made available at the pilot's home base and shall made be available for

accredited inspection duly by

representative of the Federation. Such

records shall be kept for not less than	7
years or for	the duration of this award,

whichever is the longer."

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The relevant provisions of the Helicopter Pilots'

(General Aviation) Award 1984, are as follows:

"21. Duty and flight time records	. .
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each pilot shall be required to keep a

progressive record of his duty and flight

times, using duty and flight time record

forms which shall be provided by	his
employer, in	or similar to the format

shown in appendix 1;

the pilot's record shall be signed at the end of each calendar month by the pilot

and the employer or his representative

and shall be maintained or made available !

by the employer at the pilot's base for a I

period of 7 years or the duration of this i

award, whichever is the greater period;

the employer shall keep proper time and

wages books and shall record duty, stand

by, reserves and flight times of all	,
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pilots;

(d) such records shall be available in the

pilot's base and shall be liable to

inspection by a duly accredited

representative of the Federation during

normal working hours.''

"26. Access to records.

(a) Any personal file equipment record or

check report of a pilot, whether at the

I head office of the company or at an
outpost, shall be open to inspection by
the pilot in the presence of the employer
during normal business hours,

....
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(d) each employer shall keep up to date

records in respect of each pilot in his

employ, showing the pilot's award

classification, gross salary, all

allowances, all additions to salary, all

deductions and net salary;

(e) the records referred to in subclause (a)

of this clause shall be maintained or made available at the pilot's home base

and sha31 be	made	available	for
inspection	by	a duly	accredited

representative of the Federation. Such	!
records shall be kept for not less than	7

years or for the duration of this award,	i '
whichever is the longer period."	;:

Clause 27 of that award relates to the right of entry of

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union officials, but seems to be oriented to the

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investigation of complaints concerning the application of the

award.

By two separate letters, each dated 13th July 1987, ,. ,

the applicant, by its Industrial Officer,	Mr. L.A. Cox, gave
notice to the respondent	of its intention to inspect, by duly

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accredited representatives, the relevant records of the

respondent. These letters referred to clause 21 of the

respective	awards.	The	letters	included	the	following
passage :

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"I would be obliged if you would advise me of

a time convenient to you during the week

commencing Monday 31st August when Federation

representatives can call to inspect your

I Salary, Duty and Flight time Records."

A copy of a letter of authority accrediting Mr. Cox on behalf of the applicant was enclosed with each of the letters. On

1st September 1987, Mr. Cox, together with Mr. Hinds, the

Chairman	of	the	Northern	Territory	sub-branch	of	the
applicant,	attended	at	the	business	premises	of	the

respondent at the Alice Springs airport. At that time,	Mr.
Cox requested a Mr. Leach, apparently	a director and the

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manager of the respondent, that he be allowed to inspect the

records of the respondent. Mr. Leach refused that request.

A subsequent attempt was made by correspondence

with the respondent to induce it to permit inspection of its

records under the Pilots (General Aviation) Award 1984. That

correspondence included a letter from Coldham J., who is the

Flight Crew Officers Industrial Tribunal, supporting the

request. The letter was returned, delivery having been

refused by the respondent on or about 7th October 1987.

The respondent has appeared before the Court and

has admitted breaches of the awards. In those circumstances
the applicant is content to proceed only in respect of one

breach of each award, even if the breaches concerned cannot

be brought within s.l19(l)(a) of the Act as two or more

breaches of a term of an award. For these reasons,	I	am	t .
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content to deal with the matter as if one breach of each

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award had occurred. , .,

Mr. Levy, on behalf of the respondent, has given

from the bar table some account of the respondent's business

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and the size of its operations. It was incorporated in 1973	I:
and has been operating a	general aircraft charter business
since then. Mr. Roger Leach is	a director and manager of the
business, which operates primarily from Alice Springs, with	a

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branch at Yulara. ! t :

Six full-time administrative staff are employed,

including a company secretary, who is the chief pilot, and

flies when required, a manager at Yulara, who is a pilot, who

flies as required, and four office workers.	There arc also
three full-time pilots, each of whom flies some	600 or 800

hours per annum, and casual daily pilots. At present there

are nine such casual daily pilots. The respondent claims to

have benefited pilots, by being prepared to hire persons of

little experience and to give them opportunities to f l y large

numbers of hours. Ten aircraft are operated altogether.

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As to the reason for the breaches of the awards,

the respondent says that its employees at the relevant time

were not members of the applicant and actively rejected	i
membership of it. This rejection led Mr. Roger Leach to the

mistaken belief that he was entitled to refuse entry and

inspection by the applicant.

Subsequent to the events which I have outlined, the !

respondent took legal advice, and last November received

legal advice that it was obliged to permit entry and

inspection by the applicant in relation to its records. As a result, the respondent has now undertaken in court that it will give to accredited representatives of the applicant the

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right to enter its premises and to inspect the appropriate

records. It should be noted that this undertaking has been

given today in court and that no step has apparently been taken since the legal advice was received last November to

ensure that inspection takes place. The undertaking is

presently in broad terms, no date having been negotiated for

an inspection to take place.

By virtue of s.l19(1D)(a)(i) of the Act, the

maximum penalty applicable in a case such as the present is

the sum of $1000. This is not a criminal case, but a civil

case for recovery of a penalty. By analogy with the usual

principles applicable to the criminal law, a respondent who

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in effect pleads guilty should be given some consideration

for that, with respect to penalty.

There should also be, in my view, a large reduction

in the normal penalty for the respondent's preparedness to

give access to its records in the present circumstances,

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although that reduction should not be as great as it would
have been had the inspection been given prior to today, or
even had there been firmer arrangements negotiated €or such

inspection.

Naturally, proper regard should be given to the

fact that the breaches arose from a mistaken view that the
respondent's award obligations were in some way tied up with

membership of the applicant by its employees. Taking all

those matters into account, it seems to me that an

appropriate penalty for breach or non-observance of each of

the awards is $150. I therefore propose to order that the

respondent pay $150 in respect of its breach of each award.

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The only other issue which arises is as to the fate

of each of the penalties. Section	120 of the Act provides
that the Court has a	discretion to order the payment of a
penalty into the Consolidated Revenue Fund, or	to such
organization or person as is specified in the order. When	a

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registered organization takes steps to enforce an award under

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the Act, it	is appropriate that that organization should	i
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receive the benefit of	any penalty. The legislation, in	my	L .
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view, is designed to encourage observance of the law by

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encouraging the taking of action in respect of breaches of

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awards.	I .
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For those reasons, I make the following orders:

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1. The respondent pay a penalty of $150 in respect of

breach or non-observance of clause 21(a) of the Pilots

(General	Aviation)	Award	1984,	which	breach	or	I	.
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non-observance occurred on 1st September	1987.	!
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2. The respondent pay a penalty of $150 for breach or L '

non-observance of clause 21(d) of the Helicopter Pilots'

(General Aviation) Award 1984, which breach or

non-observance occurred on 1st September 1987.

3. Each such penalty be paid to the applicant, the

Australian Federation of Air Pilots.

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Appearances	L I
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Mr. Tony Nemec for Australian Federation of Air Pilots

Mr. Grant Levy for Leach Aero Services Pty. Ltd.

Hearing Date: 24 June 1988.

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I certify that this and the . .

preceding nine ( 9 ) pages are a

true copy of the Reasons for I

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Judgment of the Honourable	l I'
Justice Gray.
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Associate

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