Australian Licensed Aircraft Engineers Association, The v Qantas Airways Limited

[2012] FWA 3939

[2012] FWA 3939

FAIR WORK AUSTRALIA

REASONS FOR DECISION

Fair Work Act 2009
s.505 - Application to deal with a right of entry dispute

Australian Licensed Aircraft Engineers Association, The
v
Qantas Airways Limited
(RE2011/3598)

SENIOR DEPUTY PRESIDENT KAUFMAN MELBOURNE, 18 MAY 2012

Dispute - right of entry - specification of “premises”.

[1] During 2011 the Australian Licensed Aircraft Engineers and Qantas Airways Ltd were engaged in bargaining for an enterprise agreement to replace the Licensed Aircraft Engineers (Qantas Airways Limited) Enterprise Agreement 8.

[2] The negotiations were long and often acrimonious. Fair Work Australia was involved in many of the negotiations as a result of Qantas’ application under section 240 of the Fair Work Act 2009. There were many occasions upon which members of the union took protected industrial action.

[3] One reason given by Qantas for pursuing its own demands and not conceding those of the union was that its international division had lost in the vicinity of $200 million. The union challenged Qantas' figures and suggested that Qantas was diverting some of its income to its subsidiaries.

[4] On 31 August 2011 two officials of the union, holders of permits issued under section 512 of the Act, provided Qantas with four entry notices purportedly made in accordance with section 481 of the Act. The officials gave notice of their intention to enter the premises to investigate what they contended was a suspected contravention of the agreement.

[5] Each notice detailed what was said to be a suspected breach of clause 11 of the agreement. Qantas contended that the notices were invalid and so informed the union. When the officials sought to exercise their right of entry pursuant to the notices Qantas declined to admit them to its premises.

[6] Clause 11 of the agreement reads:

“11. JOB SECURITY

11.1 The parties to this Agreement recognise that the major factor influencing job security for Qantas employees are forces external to Qantas.

11.2 The parties therefore recognise that some factors which affect Qantas' business performance are beyond the control of Qantas or are factors over which Qantas has little control. Subject to these factors, Qantas commits to retain the existing engineering and maintenance functions of employees covered by this Agreement.

11.3 For its part, Qantas shall seek to remain competitive and seek to ensure that job security for employees covered by this Agreement shall be maintained for the duration of the Agreement, and the employees and the ALAEA in turn commit to continue to cooperate on issues which improve Qantas' productivity, efficiency and overall profitability.”

[7] Section 481 of the Act provides:

“Entry to investigate suspected contravention

(1)  A permit holder may enter premises and exercise a right under section 482 or 483 for the purpose of investigating a suspected contravention of this Act, or a term of a fair work instrument, that relates to, or affects, a member of the permit holder’s organisation:

(a)  whose industrial interests the organisation is entitled to represent; and

(b)  who performs work on the premises.”

[8] Section 518 of the Act provides:

“Entry notice requirements

Requirements for all entry notices

(1)  An entry notice must specify the following:

(a)  the premises that are proposed to be entered;

(b)  the day of the entry;

(c)  the organisation of which the permit holder for the entry is an official.”

[9] Qantas contended that the union officials did not have the right to enter any of its premises pursuant to section 481 of the Act on the basis of the notices given to Qantas on 31 August 2011 because:

(a) the notices were not valid because they did not comply with the Act due to their failure:

(i) to adequately specify the premises that were proposed to be entered;

(ii) to properly particularise the alleged contraventions;

(b) the proposed entry was for an ulterior purpose in that it was in part or in whole for the purpose of obtaining information that could be used to challenge or undermine the arguments of Qantas in the then ongoing enterprise bargaining occurring between the parties; and

(c) the permit holders did not suspect and could not reasonably have suspected, that the alleged contraventions have occurred.

[10] On 21 September 2011 the union applied to Fair Work Australia under section 505 of the Act to compel Qantas to allow the officials of the union to enter the “Qantas Airways Limited premises in Mascot, Sydney”, being the premises specified in the notices.

[11] I heard the matter on 4 and 5 October 2011.

[12] On 29 October 2011 Qantas grounded the airline and gave notice that it intended to lock out employees.

[13] On 31 October 2011 Fair Work Australia terminated protected industrial action for the proposed agreement pursuant to section 424 of the Act. In the 21 days following the termination of protected industrial action intense negotiations under the auspices of Fair Work Australia took place in an attempt to facilitate the parties reaching an agreement. No agreement was reached at the end of the 21 day period and the President convened a full bench for the purpose of making a workplace determination pursuant to section 266 of the Act.

[14] On 23 January 2012 the full bench made a workplace determination, the terms of which had been consented to by the parties.

[15] As it seemed to me that the right of entry dispute between the parties might have been resolved by the making of the workplace determination I convened a hearing on 26 March 2012 to ascertain whether the parties nevertheless desired that I decide the matter. After a short hearing I directed the parties to file and serve submissions on that issue. The union submitted that I should issue a decision, whereas Qantas submitted that I should not.

[16] Qantas contended that the matter should be adjourned indefinitely on the basis that:

(a) in the circumstances, the decision is unnecessary;

(b) the current industrial position of the parties is relevantly different to that which pertained at the time of the application and hearing; and

(c) a decision either way may lead to industrial disharmony between the parties.

[17] The union submitted that notwithstanding the making of the workplace determination its alleged suspicions in relation to breaches of clause 11 of the agreement remain. The union still desires to obtain information within the possession of Qantas in order that it might obtain material to confirm its suspicion.

[18] Although I am inclined to think that deciding the matter may aggravate the already fraught industrial relations between the parties the applicant union is entitled to a determination of the matter. However, in order to minimise any contribution that my decision might make towards exacerbating the industrial situation, I intend to abbreviate my reasons for decision.

[19] In relation to its submission that the union had failed to specify the premises to be entered as required by section 518 of the Act, I set out a portion of the contention filed by Qantas for the purposes of the original hearing.

“7. ... the right to enter premises under section 481 is not ‘at large’ in relation to the places and locations which may be entered by the permit holder pursuant to that section. Rather, the right is expressly limited to particular premises at which the relevant organisation has members who perform work.

8. Premises can include any land, building or structure (section 12). Where an employer operates at a number of premises, the notice must specify the particular premises to be entered.

9. In this regard, it is important to note that a permit holder is not entitled (under section 481) to enter any premises at which the relevant organisation does not have any members who perform work. Qantas contends that an entry notice must specify the premises to be entered with particularity, so that the relevant occupier and/or any affected employer can ascertain whether the permit holder is entitled to enter that place under the FW Act.

10. Under the right of entry scheme in the Workplace Relations Act 1996 (WR Act), a Full Federal Court in dealing with a refusal to grant a right of entry said:

‘This case demonstrates the critical importance, in exercising rights under s. 285B … (investigating a suspected breach) … of correctly identifying the relevant occupier.’

See AMIEU v Australian Food Corporation (2001) 111 IR 425 at [60]

11. In AFAP v Ansett Transport Industries (Operations) Pty Ltd & Ors [1990] FCA 270 (2 August 1990), the Federal Court dealt with the right of entry provisions in the Industrial Relations Act 1988 which allowed entry to ‘prescribed premises that are specified in the authority’ ([2]). It was said by Gray J at [13]:

‘In my view, the expression ‘the premises of employers’ in the draft authorities is insufficient to constitute specification for the purposes of s 286(1)(a).’

12. The FW Act requires that an entry notice specify the particular premises to be entered. Section 518 of the FW Act provides:

(1) An entry notice must specify the following:

(a) the premises that are proposed to be entered;

13. Qantas contends that the use of the definite article, ‘the’, in sub-paragraph (1) makes it clear that the particular premises that are proposed to be entered must be specified in the notice.

14. The contentions above are supported by a consideration of the objects of the right of entry provisions in the FW Act. Section 480 of the FW Act provides that the object of Part 3-4 of the FW Act is to:

‘… establish a framework for officials of organisations to enter premises that balances:

(a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of:

(i) this Act and fair work instruments; and

(ii) State or Territory OHS laws; and

(b) the right of employees and TCF outworkers to receive, at work, information and representation from officials of organisations; and

(c) the right of occupiers of premises and employers to go about their business without undue inconvenience.’ [original emphasis]

15. Qantas contends that in order to properly take into account the right referred to in sub-section 480(c), an entry notice needs to identify with sufficient particularity the places which are sought to be entered so that the occupier or any affected employer can make appropriate arrangements in relation to the proposed entry.

16. Subdivision C of Part 3-4 sets out a number of other requirements for permit holders, including in relation to:

complying with occupational health and safety requirements that apply to the premises; and complying with reasonable requests by the occupier of premises to conduct interviews in particular rooms or areas, or take particular routes to reach a room or area of the premises.

17. In the absence of knowing precisely which premises are proposed to be entered by the relevant permit holders, it is not possible for an occupier or affected employer to ensure compliance with the provisions in Part 3-4 of the FW Act – for example, it would not be possible to make arrangements for particular rooms or areas to be available at the premises for the purposes of the permit holders conducting interviews or holding discussions, or to arrange for particular routes to be used by the permit holders.

18. The description of “Qantas Airways Limited premises in Mascot, Sydney” in the 31 August notices does not ‘specify’ the premises to be entered. In particular:

(a) none of the 31 August notices specify the particular premises to which entry was sought. Qantas occupies a number of premises located in the suburb of Mascot, many of which are places at which ALAEA members do not perform any work;

(b) as a result, Qantas is unable to identify the specific premises to which the 31 August notices relate and it cannot therefore determine whether the ALAEA has members who perform work on those premises or make appropriate arrangements in relation to the entry.

19. Mr Purvinas said in evidence in chief that his members perform work at varying locations in Mascot, including the terminals. He said the premises at Mascot were “all of those buildings” and with the hangar complex were all part of the Airport.

20. In cross-examination, Mr Purvinas could not identify a number of buildings nor knew whether members performed work there. As to the QFCL (Qantas Flight Catering) building, he said he thought there were car parks there that his members used but he could not be sure. The parking of a car on the way to attend for work is not the performance of work on the premises.

21. In re-examination, Mr Purvinas said he had, as an employee of Qantas, spent time in almost all the buildings. It is clear from this and the earlier evidence that there are buildings (ie premises) at Mascot where ALAEA members do not ordinarily perform work. It is not an onerous requirement to specify the buildings to be entered. They can be particularised. This is an important requirement. The suburb of Mascot, including the Airport, covers a huge area.”

[20] For the union it was submitted that what constitutes “premises” is defined very broadly in section 12 of the Act and includes any land, building, structure, mine, mine working, aircraft, ship, vessel, vehicle, place and part of premises. It was put that “licensed aircraft engineers have to work across all areas of the premises”, which are interconnected. It was further submitted that Qantas was seeking to import some sort of artificial delineation into the word “premises”, which the union contended encompassed the entire area shown in the maps that were tendered at the hearing. That area encompasses a range of buildings, terminals, and engineering works which house a variety of Qantas employees.

[21] Although licensed aircraft engineers might perform work in many of those areas, I cannot be satisfied that they perform work in all of them. The definition of premises in s.12 of the Act includes ‘parts of premises’. In my view, where the premises comprise many different ‘parts’, as is the case here, for the purposes of giving notice under s.518 of the Act, the part or parts of premises to which entry is sought ought be described with sufficient particularity so that it is, or they are, identifiable, or at least, capable of being ascertained by the recipient of the notice. The words “the Qantas Airways Limited premises in Mascot, Sydney” do not meet this requirement. Although it refers to a suburb, it does not disclose to what part or parts of the vast array of buildings and structures entry is being sought.

[22] There is little doubt that had the notice referred to “Qantas Airways Limited premises, Sydney” the notice would have been too wide because it would not have specified the premises that are proposed to be entered. Confining the notice to Mascot does not, in my view, identify the premises with greater particularity.

[23] As can be seen from the maps which were tendered as exhibits, and confirmed by a site visit that I had during conciliation proceedings, albeit in a different matter, “the Qantas Airways premises in Mascot Sydney” could encompass a vast area, many hectares in size. There are office buildings, hangars, catering facilities, engineering facilities, terminals and runways, to identify just a few. From the description of the premises in the notices, Qantas could not know what part or parts of its vast array of facilities, the union sought to enter. Importantly, from the description given by the union, Qantas could not know whether entry was sought to areas within the facility where no members of the union performed work. The notices stipulated that entry was sought on only one specified day. It would have been physically impossible to enter all parts of the facility in one day, let alone inspect documents or interview people. Qantas could not possibly know where entry was sought.

[24] I accept Qantas' submissions in relation to the lack of specificity of the premises; an entry notice needs to identify with sufficient particularity the places that are sought to be entered so that the occupier or employer can make appropriate arrangements in relation to the proposed entry. It must be limited to premises, or parts of premises, where members of the union perform work. The “Qantas Airways Limited premises in Mascot” is not so limited. In my view, the premises sought to be entered should bear some connection with the breach that is alleged to be suspected, either because it is the physical area at which the relevant work is performed, or because documentation relating to the alleged breach are reasonably likely to be located there.

[25] Although each case will fall to be determined on its own facts, here, sufficient particularity was not given to enable Qantas to know what particular part or parts of the “premises” were sought to be entered.

[26] Section 505 of the Act provides a discretion in the way Fair Work Australia can deal with a dispute about the operation of Part 3-4 of the Act. Section 595(2) of the Act provides that Fair Work Australia may also deal with a dispute by mediation or conciliation, or by making a recommendation or expressing an opinion. When dealing with the dispute by arbitration, section 505(2)(e) of the Act empowers Fair Work Australia to make any order it considers to be appropriate. Section 505(2) of the Act provides a number of examples of the types of orders that may issue to resolve the dispute, but the word “including” in my view indicates that the issuing of an order is but one way in which the dispute may be resolved. Section 505(4) of the Act requires Fair Work Australia to take into account fairness between the parties concerned.

[27] Because the notices are extremely broad, and encompass a vast area which comprises a number of different premises, it would be significantly onerous for Qantas to identify which premises, the permit holders intended to enter, and then to facilitate entry. Further, the lack of specificity in the notice renders it impossible for Qantas to identify whether the union is seeking entry to premises where its members perform work. The requirement that that the union specify with some particularity the premises it intends to enter is not particularly cumbersome. Fairness between the parties requires no less.

[28] I resolve the dispute by not granting the relief sought by the union. In the circumstances, I am not minded to make the order sought by the union.

[29] It is not necessary that I deal with the other objections mounted by Qantas and I consider that it is preferable that I not deal with them, given that those arguments challenge the motives of the union and its officials for seeking entry.

SENIOR DEPUTY PRESIDENT

Appearances:

Mr. F. Parry SC for Qantas Airways Limited.

Mr. B. Dudley for Qantas Airways Limited.

Mr. G. Sivaraman for the Australian Licensed Aircraft Engineers Association.

Hearing details:

2011.
Sydney:
October 4-5.

2012
Sydney:
March 26.

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