Australian Federation of Air Pilots v Regional Express Holdings (No.2)

The Australian Federation of Air Pilots (AFAP) brought proceedings against Regional Express Holdings (Rex) alleging contraventions of the *Fair Work Act 2009* (Cth). The dispute concerned a letter sent by Rex to candidates for a cadetship program, which the AFAP contended constituted adverse action against both the candidates and existing employees, as well as a threat of coercion and the dissemination of false and misleading statements regarding a workplace right. The matter was heard by Blake J in the Federal Court of Australia.

The primary legal issues before the court were whether Rex's letter amounted to adverse action under sections 340 and 343 of the *Fair Work Act 2009*, and whether it contained false or misleading statements about a workplace right contrary to section 345 of the Act. A secondary issue concerned the procedural question of whether the AFAP was bound by the specific case articulated in its Amended Application, or if it could advance a different case, and whether permitting such a departure would cause procedural unfairness to Rex.

Blake J determined that the letter did not constitute adverse action, nor did it contain false or misleading statements about a workplace right. His Honour reasoned that the letter's content, when viewed objectively, did not demonstrate the necessary intent or effect to contravene the relevant provisions of the *Fair Work Act 2009*. Regarding the procedural issue, Blake J held that while parties are ordinarily held to the case set out in their originating process, the purpose of pleadings is to define the issues and avoid surprise. In this instance, the AFAP was permitted to advance a case different from that in its Amended Application, as Rex had not suffered any procedural unfairness as a result. Consequently, the AFAP's claims were dismissed.