Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd

[2011] FMCA 58

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION v QANTAS AIRWAYS LTD & ANOR [2011] FMCA 58

INDUSTRIAL LAW – ADVERSE ACTION – Where applicant alleged that employer took adverse action against the employee in response to a pay claim – where employee claimed that he was verbally abused and intimidated as a result of his claim and was denied an opportunity for promotion – where employer suspended all international postings from Brisbane – whether all or any of these actions caused an injury to the employee in his employment or altered his position to his prejudice.

COERCION – Whether intimidatory treatment and suspension were motivated by an intent to coerce the employee to not pursue his claim.

Fair Work Act 2009 (Cth), ss.340, 342, 343, 360, 361, 539, 540
Workplace Relations Act 1996 (Cth), ss.170NC, 298K, 400
Conciliation and Arbitration Act 1904 (Cth), s.5

Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251
Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399
Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770
CFMEU v C E Marshall & Sons Pty Ltd [2007] FCA 169
National Union of Workers v Qenos Pty Ltd [2001] FCA 178
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1
Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor [2010] FMCA 1009
Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18
Childs v Metropolitan Transport Trust (1981) IAS Current Review 946
Blair v Australian Motor Industries Ltd (1982) 61 FLR 283
Squires v Flight Stewards Association of Australia (1982) 2 IR 155
Byrne v Australian Ophthalmic Supplies Pty Ltd [2008] FCA 66
Community & Public Sector Union v Telstra Corporation Ltd [2001] FCA 267
Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67
Construction Forestry Mining & Energy Union v Hamberger [2003] FCAFC 38
Finance Sector Union v Commonwealth Bank of Australia (2000) 106 FCR 16
Schanka v Employment National (Administration) Pty Ltd (2000) 170 ALR 42
National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441
Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456
Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors [2010] FMCA 863
Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240 Sabag v Health Care Complaints Commission [2001] NSWCA 411
Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292
Water Board v Moustakas (1988) 180 CLR 491
Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2010] FCA 590

Applicant: AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION

First Respondent: QANTAS AIRWAYS LTD

Second Respondent: PETER CAWTHORNE

File Number: SYG 870 of 2010

Judgment of: Raphael FM

Hearing date: 29 November 2010 to 1 December 2010
9 December 2010

Date of Last Submission: 27 January 2011

Delivered at: Sydney

Delivered on: 11 February 2011

REPRESENTATION

Counsel for the Applicant: Mr A Slevin

Solicitors for the Applicant: Maurice Blackburn

Counsel for the Respondents: Mr R Kenzie QC and Mr S Prince

Solicitors for the Respondents: Blake Dawson

THE COURT DECLARES

1. That the First Respondent subjected Mr Luke Murray to adverse action by suspending international postings in contravention of s.340(1) Fair Work Act 2009 (Cth).

2. That the Second Respondent took action against Mr Luke Murray with intent to coerce him to not exercise a workplace right in contravention of s.343(1)(a) Fair Work Act 2009 (Cth).

ORDERS

1. Proceedings for penalty to be set down for hearing on a date to be advised.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 870 of 2010

AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION

Applicant

And

QANTAS AIRWAYS LTD

First Respondent

PETER CAWTHORNE

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Luke Murray is a licensed aircraft maintenance engineer (“LAME”) employed by Qantas Airways Ltd at its Brisbane facilities. He is a member of the Australian Licensed Aircraft Engineers Association (“ALAEA”), whose employment is regulated by the provisions of the Licensed Aircraft Engineers (Qantas Airways) Agreement 8 (the “EBA”) which has been approved under the Workplace Relations Act 1996 (Cth) (“WRA”). Mr Murray commenced his employment with Qantas in 1987. Qantas engineers do not only operate at facilities in Australia. They operate at major ports around the world to which Qantas flies. Some engineers are posted to these locations on a semi-permanent basis but there is a constant need to provide relief staff. The relief staff are sourced from facilities around Australia and Qantas has members of its management team responsible for organising and ensuring the efficient operation of these postings. For the purposes of these proceedings, Mr Panagiotopoulis was the senior executive to whom Mr Cawthorne reported. They were based in Sydney. In Brisbane Mr Honsa had responsibilities for selecting LAMEs to undertake the postings and ensuring that the administrative side of the arrangements were in place. He reported to Mr Thompson, the manager line maintenance operations, who was the person ultimately responsible for approving or declining a request for an overseas posting. When a LAME is sent on an overseas posting, he is entitled to certain benefits under the EBA. These relate to shift penalties (clause 24), overtime (clause 25), travels between ports (clause 39), meal allowance (clause 40) and travel allowance (clause 40). Before a LAME travels he is issued the document entitled “Qantas Engineering Temporary Assignment Agreement”. The six page document is stated to:

   “confirm details of your temporary assignment from [blank] to [blank]. These dates may be subject to change due to company requirements. Your local manpower planner will advise your rostered shifts pre and post assignment.”

   The document gives details of travel, accommodation, contact details, allowances and some other information including medical coverage and insurance. There is a section addressed to the payroll officer. It is in the following form:

   “SALARY AND OTHER CONDITIONS:

   While on posting, you will work according to the published NARITA roster for the period of your assignment. Payment will be made as per your normal Home Base roster, or per a calculated SDA (Special Duties Allowance), whichever is greater.

   PAYROLL OFFICER

   [   ] Please pay as per normal BRISBANE shift roster.

   [   ] Please pay as per SDA calculation attached.

2. Not every LAME in Brisbane was interested in taking up overseas postings. Mr Honsa kept a list of those qualified to do so. Mr Murray was one of those and, in about November 2009, he was asked by Mr Honsa whether he was interested in taking up a posting to Narita to provide relief coverage for approximately six weeks from 4 December 2009 to 16 January 2010. Mr Murray agreed. He received the temporary assignment agreement in which the section addressed to the payroll officer requiring payment in accordance with the Brisbane shift roster had a cross marked in it. It is common ground that Mr Murray did not receive a copy of the proposed Narita shift roster prior to departing and also that, a short time prior, the shift rosters in Brisbane changed.

3. Mr Murray flew to Narita and carried out his duties working the Narita shift roster. On the day he was due to return home, he was “bumped” from the plane and had to remain an extra day in Narita. Whilst in Narita he had a health problem for which he had contacted Qantas’ insurers AHI. Mr Murray was unhappy with the service he had received in respect of his medical condition.

4. There are significant differences between the Narita roster and the Brisbane roster, the effect of which is that longer hours are worked under the Narita roster and higher shift penalties are paid. It was Qantas’ practise to pay the higher of the two shift allowances. Mr Murray gave unchallenged evidence that he raised this matter with Malcolm Ramson, the manager in Narita, in late January 2010 and was advised that he would be paid the higher rates. Mr Murray had gone on leave upon his return from Narita and did not raise his concerns immediately with Mr Honsa. However, on 25 February he spoke with Mr Honsa about taking an additional RDO arising from the extra day spent in Narita because he had been bumped from the plane. At the same time, he informed Mr Honsa that he believed he was entitled to some further RDOs as a result of the extra time that he had worked in Narita over and above the Brisbane roster. Mr Murray received the one extra RDO but Mr Honsa indicated that Mr Murray would need to obtain details of his roster and hours worked from Narita and take the matter up with Mr Cawthorne. In March Mr Murray did take the matter up with Mr Cawthorne in a series of telephone conversations and emails. He also raised with Mr Cawthorne his concerns about his medical treatment. Mr Cawthorne made some enquiries with AHI which indicated that the situation was not quite as described to him by Mr Murray. He telephoned Mr Murray and a heated conversation took place. Mr Thompson became involved as eventually did Mr Panagiotopoulis. On 26 March 2010 a decision was taken between Mr Thompson and Mr Panagiotopoulis to suspend all overseas postings for LAMEs out of Brisbane. This included the regular weekend posting of LAMEs to Noumea. Mr Murray indicated that he intended to invoke the grievance procedure through his Union because of the continued non-payment by Qantas of what he considered to be his additional allowances. On 21 April 2010 the ALAEA commenced these proceedings. On 27 April 2010 the benefit of overseas postings for LAMEs out of Brisbane was reinstated.

5. On 31 March 2010 Mr Murray applied for promotion to the position of Product Inspector-Airbus (005365) (Toulouse France). He was interviewed for the position on 3 June 2010. On 16 June 2010 Mr Thompson was asked to complete a reference check for Mr Murray which he did. Mr Murray was unaware of this. The responses to the reference check were used to decide whether or not to give a second interview. Although it was decided only to give a very limited number a second interview, a greater number of people were sent an email advising them that they were going to receive such an interview. One of these persons was Mr Murray. On 14 July 2010 he was informed over the telephone that he would not be required for a second interview and that the email had been sent by mistake. Mr Murray at around the same time also applied for another senior position for which he was also unsuccessful. He originally made a claim in these proceedings regarding this but that was later abandoned. On 5 August 2010 Mr Murray’s claim for shift penalties and allowances for the Narita posting was resolved internally.

6. The current proceedings which have been brought by Mr Murray’s Union, ALAEA, claim that the first respondent and/or the second respondent took adverse action against Mr Murray in breach of s.340 of the FWA. It also claims that the first respondent and/or second respondent had taken action with the intent of coercing Mr Murray into not exercising his workplace rights, contrary to s.343 of the FWA. It is not in dispute that Mr Murray had workplace rights emanating from his workplace agreement, the EBA, and this included participating in processes under the workplace agreement and making complaints or inquiries in relation to his employment. It also included initiating dispute resolution procedures under the EBA and the filing with this Court of an application pursuant to ss.539 and 540 of the FWA. In these reasons I propose to deal first with the legal position relating to the burden and onus of proof in this type of proceeding and then with each of the separate allegations of contraventions of ss.340 and 343 of the FWA.

Onus and standard of proof

1. Section 340 of the FWA is in the following form:

   “(1)  A person must not take adverse action against another person:

   (a)  because the other person:

   (i)  has a workplace right; or

   (ii) has, or has not, exercised a workplace right; or

   (iii)proposes or proposes not to, or has at any time proposed or   proposed not to, exercise a workplace right; or

   (b)to prevent the exercise of a workplace right by the other person.

   Note:   This subsection is a civil remedy provision (see Part 4-1).

   (2)  A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs.

   Note:   This subsection is a civil remedy provision (see Part 4-1).”

   Section 342 defines adverse action in the case of an employer against an employee as:

Meaning of adverse action

Item            Column 1   Column 2

         Adverse is taken             If…
         by…

1                An employer against         The employer:
                 an employee:   (a)  dismisses the employee; or

  (b) injures the employee in his or       her employment; or
  (c)  alters the position of the   employee to the employee's   prejudice; or
  (d) discriminates between the   employee and other employees   of the employer.     

Section 343 defines coercion:

“ (1)  A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

(a) exercise or not exercise, or propose to exercise or not exercise, a workplace right; or

(b)  exercise, or propose to exercise, a workplace right in a particular way.”

Section 360 is relevant to these proceedings and states:

“For the purposes of this Part, a person takes action for a particular reason if the reasons for the action include that reason.”

Finally s.361 provides for the reversal of onus:

“(1)  If:

(a)  in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

(b) taking that action for that reason or with that intent would constitute a contravention of this Part;

it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

(2)  Subsection (1) does not apply in relation to orders for an interim injunction.”

1. In his helpful written submissions Mr Slevin for the applicant makes reference to a number of authorities that consider the way in which a court should undertake the task of finding whether or not a civil penalty provision has been breached. He refers first to Barclay v Board of Bendigo Regional Institute of Technical and Further Education (2010) 193 IR 251 per Tracey J. His Honour notes that s.340(1) must be construed with regard to the legislative context in which it appears. He finds at [29] that the word “because” in s.340 bears the same meaning as the words “for a particular reason” in order to allow an applicant to obtain the benefit of ss.360 and 361. At [30] his Honour makes reference to the protection provisions in s.343 stating that:

   “If such an intention is alleged, s 361 establishes a rebuttable presumption that the respondent acted with the requisite intention to coerce.”

   At [31] his Honour supports his findings by reference to the explanatory memorandum to the bill before saying at [32]:

   “These passages make it tolerably clear that the legislature intended that the reverse onus would operate when one element which is needed to establish a contravention is that the actor had been motivated by a particular reason (“because”) or by a particular intention (“the intent to coerce”).”

   At [34] his Honour opined:

   “The task of the court, in a proceeding such as the present is, then, to determine why the employer took the adverse action against the employee.  Was it for a prohibited reason or reasons which included that reason?  In answering this question evidence from the decision-maker which explains why the adverse action was taken will be relevant.  If it supports the view that the reason was innocent and that evidence is accepted the employer will have a good defence.  If the evidence is not accepted the employer will have failed to displace the presumption that the adverse action was taken for a proscribed reason.

   If an employer, who is alleged to have contravened one of the provisions of Part 3-1 in which the word “because” is to be found, adduces evidence which persuades the court that it acted solely for a reason other than one or more of the impermissible reasons identified in a particular protective provision, it will have made good its defence.  Because of the reverse onus provision the employer will normally need to call evidence from the decision-maker to explain what actuated him or her to act to the employee’s detriment.  As Buchanan J said in Seymour (at 14), the employer will usually have to provide “sworn evidence denying any [proscribed] reason…and, in most cases, an explanation of the real reason for [the adverse action] consistent with the absence of [proscribed reasons] is, in a practical sense, also necessary”.  That evidence can be tested in the light of established facts.  The credibility of the decision-maker will be assessed by the court.”

2. Similar views were expressed by Collier J in Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399. In her Honour’s view it was for an applicant to establish that he or she had the workplace right and that it had been the subject of adverse action but once this had been done the onus of proof shifted to the employer in respect of the reason for the adverse action. It is for the employer to demonstrate that the action that was taken was not for a reason prohibited by the Act. In respect of the standard of proof, this was considered by Logan J in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited [2010] FCA 770 as follows:

   “Subject to the operation of s 360 and s 361 of the Fair Work Act, the Union carries the burden of proving the alleged contraventions. While the proceedings are civil in character, they are nonetheless penal. Thus, though the Union must prove the contraventions on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) (Evidence Act) requires that; due regard be given to the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged. That sub-section of the Evidence Act is a restatement of a well known passage in the judgment of Dixon J (as his Honour then was) in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 in relation to considerations which intrude in deciding whether the standard of proof in civil proceedings has been met, “the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

3. Collier J also dealt with the question of the standard of proof in CFMEU v C E Marshall & Sons Pty Ltd [2007] FCA 169 where her Honour said at [39] and [40]:

   “The case before me involves the application of civil remedy provisions, and penalties which can be awarded against the respondent if appropriate. In my view the issue raised by Mr Horneman-Wren may be addressed by recognising that the civil standard of proof - that is, the balance of probabilities – is applicable as required by s 140(1) Evidence Act, however in applying the civil standard it is appropriate to take into account the issues prescribed in s 140(2). This does not mean that I am required to apply a higher standard of proof than the “mere balance of probabilities” as submitted by Counsel. It does, however, require me in this case, in applying the civil standard, to take into account the nature of the claim, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. In particular in the context of a civil remedy provision, I take into account the fact and the nature of the penalties which can be awarded against the respondent. This approach is consistent with the approach taken by Nicholson J in Maritime Union of Australia 93 FCR at 65. The duty of the court in such cases to take into account issues specified in s 140(2) has also been recognised in other Federal Court decisions including The Employment Advocate v National Union of Workers (2000) 100 FCR 454 at 464 and Hamberger v CFMEU (2000) 104 IR 45 at 49.

   Accordingly, in my view the civil standard of balance of probabilities, prescribed by s 140(1) and (2) Evidence Act, applies in this case.”

1. The respondent also cautioned me to bear in mind the views expressed by Weinberg J in National Union of Workers v Qenos Pty Ltd [2001] FCA 178. His Honour cautioned against too ready a finding that witnesses had given perjured evidence and reminded his readers that the fact that there might be some connection between an employer’s act and an employee’s union membership or activities did not necessarily mean that the employer did the act because the employee was a union member or because of the employee’s activities:

   “Whether an employer was motivated by a prohibited reason or reasons which include a prohibitive reason is a question of fact, often involving questions of judgment. The fact that a particular act precedes another does not necessarily mean that it causes that other to occur.” [136]

2. Finally, his Honour cautioned against expressing views as to the wisdom of the actions taken by the employer. It is not for the Court with the benefit of hindsight to tell an employer how he should have acted if he wished to comply with what the Court understood as appropriate action. If the action that an employer took was not taken for one of the prohibited reasons, then the fact that the employer might have taken a different course of action which might have resulted in a more harmonious workplace is not to the point.

3. The principles adumbrated in the authorities cited above are those which will guide me in the manner in which I reach my decision upon the applicant’s claims.

The applicant’s claims

1. The allegation of verbal abuse

1. The applicant alleges that:

   “The second respondent verbally abused the employee for exercising the workplace rights described in 1A(1) above. Verbally abusing the employee injured him in his employment.”

   Mr Murray had been in contact with Mr Cawthorne originally on 25 February. He rang Mr Cawthorne and told him that he had been bumped off the flight and asked for an extra day off. Mr Cawthorne told him that it was in order for him to arrange this with his manager (Mr Honsa). Mr Murray spoke to Mr Cawthorne again around 27 February and then raised with him the additional hours that he had worked and his request for additional RDOs for that. During the course of this conversation, Mr Cawthorne said words to the effect:

   “I don’t understand why none of the other guys who have been to Narita never raised this before. You will need to send me your roster to verify your claim.”

   Mr Murray had received similar advice from Mr Honsa. Mr Murray then approached Mr Mal Ramson the manager in Narita for a copy of the roster. On 8 March 2010 Mr Murray went to see Mr Thompson and told him that there was a discrepancy with what he was paid under the Brisbane roster and the Narita roster. Mr Thompson told him that he did not know what the Narita roster was and that he should speak to Mr Cawthorne. Mr Murray then sent an email to Mr Cawthorne:

   “Gday Peter,

   First day back at work from leave. Hope you’re not still doing more than three jobs at the same time.

   I’ve just reconciled the hours between the NRT roster and the Brisbane roster. NRT roster (including 68 hours travel time for 2 trips each way) is 578 hours. The Brisbane roster is 452 hrs. That’s a difference of 126 hrs.

   I’ve spoken to Mark Thompson, who is happy to deal with it the same way we always have, as per the phone con we had when I got back, and have the DMM adjust the roster on mutually agreeable days. If you could send an email acknowledging the hours to the DMM (today Steve Duke SDU09), and copy him in, I’ll take care of it today.

   On a related matter, on the L.O.P. I noticed that we used to be paid as per home/local roster, whichever was greater. I calculated the NRT roster is in the low 40%’s and my roster in Bris is about 35, I spoke to Mal Ramson about this, and he said that we would be paid the greater. Who should I speak to get this sorted?

   You can call me on […] if you any questions for me.

   Cheers,

   Luke.”

   The reference to the “phone con” is a reference to the claim for the additional RDO because he was bumped and the reference to the DMM is a reference to Mr Honsa. The claims made in the third and fourth paragraph of the email are different. The claim in the third paragraph is for additional days off because of extra time worked and the claim in the fourth paragraph is for an additional shift loading. Mr Cawthorne replied within a short space of time:

   “Luke,

   I don’t have the time to go through the BNE/NRT roster to verify what you are claiming. You need to sort out any perceived owed days off with local management for a time when it is mutually suitable. It does seem a bid [sic] odd however that you are the only person (in over 2 years of NRT support) to have raised the anomaly between home and posted rosters.

   Your temporary assignment agreement states that you will be paid per the BNE roster.

   You need to carefully consider what is on offer re travel/posting conditions etc before accepting any future overseas postings. You always have the option to decline if you think that the hours of work may be too excessive or the shift pattern unacceptable.

   Regards,

   Peter Cawthorne…”

2. Approximately a quarter of an hour later, Mr Murray responded to Mr Cawthorne’s email:

   “Hi Peter,

   I don’t expect you to verify my hours, all I wanted was to work it out locally as we have always done. I am always happy to go away and do what has to be done, provided the goalposts don’t keep getting moved on me.

   Its not really odd that no one has noticed the difference in wage averages, we only changed rosters the week before I went to Narita. I was in no position to make any judgment on the Narita roster as I didn’t receive a copy of this until two days after I arrived in Japan.

   I also got sick in Japan, and had to go to hospital. I paid the bill with my corp card, but expect there will have to be some paperwork for the insurance claim. Do you know what’s required??

   Cheers,

   Luke.”

3. About half an hour later, Mr Cawthorne responded:

   “Luke,

   To the best of my knowledge the goalposts have not been moved it’s just that I rarely hear from anyone else in BNE so assume that whatever is in place locally is satisfactory for most people. Presume you read and followed the details provided in your temp assignment agreement re medical treatment. They should have provided you with any insurance details etc. If you did not follow the advice then you may be on your own.

   Please contact the number below per your TAA for further assistance.

   MEDICAL COVERAGE:

   Worldwide Emergency Care for QANTAS Group Staff Travelling on Duty Overseas.

   In the event of personal accident or illness, please contact the 24 Hour number of our insurers Accident and Health International Underwriting Pty Limited (AHI). If you require assistance anywhere in the world contact the local telephone operator and ask for a reverse charge call to AHI ASSISTANCE on 61 2 9202 8211 or access at >

   About an hour thereafter, Mr Murray wrote again to Mr Cawthorne:

   “Peter,

   Just for your info; I did follow the advice in the L.O.P. and asked the girl to give me the details of an English speaking doctor in Narita. She informed me that she had no idea where I could find one and told me to call a friend. They were basically no help at all. I discovered that local Japanese don’t have much of a need for English speaking doctors, and didn’t know where I could find one. Len was in Australia, so I spent the day in the local hospital where nobody spoke English, and received some very dubious medical treatment.

   I think the reason nobody has mentioned the roster before, is because we only just changed to a pattern with a reduced wage average. In the past they were comparable, so it wasn’t an issue. As I said, I didn’t receive a copy of the NRT roster until after I arrived in Japan, so I wasn’t able to make an informed decision, and trusted that I wasn’t being disadvantaged. I believe it has always been the policy that we were paid the higher of the two. I’m not sure where we stand on this, can you clarify your position please?

   Thanks,

   Luke.”

4. Upon receipt of this final email, Mr Cawthorne, who was responsible for relations with the insurer, telephoned AHI and told them that he had received a complaint from one of his staff. The complaint was fairly quickly identified and the AHI staff member read out to Mr Cawthorne the transcript of the conversation in Narita between Mr Murray and the AHI representative. This indicated that Mr Murray had sought help from AHI and had been referred to the front desk of his hotel with the suggestion that he should ask for the name of an English speaking doctor. He does not appear to have been told by AHI to go and ask a friend. Mr Cawthorne deposes that:

   “23.At about 1.40pm Sydney time, I called Mr Murray on his mobile phone. I had a conversation with Mr Murray in words to the effect of:

   Me:    I called AHI. They read from a transcript of your conversation with them and they told me that they told you to go to the hotel reception and ask for an English speaking doctor. You have not told me the truth about your conversation.

   LM:     Yes but the hotel staff were of no help.

   Me:    You told me in your email that AHI had not been helpful at all and had told you to phone a friend. Based on this, how can I be sure that anything else you are claiming is truthful?

   24.During this telephone discussion we then had an exchange in words to the effect of:

   Me:    Your letter of posting said that you would be paid in accordance with your Brisbane roster and that is what you were paid.

   Apart from one recent issue no one else has raised a complaint about a posting to Narita or questioned their posting conditions in their letter of posting.

   LM:     It hasn’t been a problem in the past because the Brisbane roster has only recently changed and I was the first person to be posted after the new Brisbane roster started.

   Me:    If you didn’t like the conditions you didn’t have to go. You knew the roster before you went. You could have declined to go and there are hundreds of other guys who would have gone in your place.

   LM:     I didn’t know the Narita roster before I left. I did not receive a copy of the roster until after I arrived in Japan.

   Me:    No doubt before you went to Japan you would have spoken to the other travelling engineers in Brisbane who had recently been to Narita and you would have been well aware of the roster requirement.

   I am not going to respond to your email because this email train is not getting us anywhere and I don’t want to continue with it. I have just returned from leave and I don’t have time to deal with you or your complaint until you provide me with supporting evidence of the actual hours you worked in Narita. I need firm justification before I can approve any additional days off. I am not going to take your word for it because you have been economical with the truth concerning your contact with AHI.

   LM:     Is your position that the Company will not pay me for the roster I worked overseas but for a roster that was worth less?

   Me:    At this stage, yes, until you can provide some supporting evidence of your claims.

   25.     At the end of the discussion Mr Murray said words to the effect of:

   I will take this up with the boys.

   26.At the end of our discussion I understood that Mr Murray would provide me with more information in relation to his claim and I would then investigate his claim further. I did not refuse to deal with the issue at all, but I did refuse to continue our email correspondence since I felt it was not getting us anywhere.”

5. Mr Murray has a different version of the conversation. He includes within it a remark by Mr Cawthorne that:

   “The guys who go away and accept the conditions that they are given, are the ones who get asked to go away next time.

   He also stated that he responded to Mr Cawthorne’s suggestion that he could have declined to go to Narita with words to the effect that:

   “The two guys I know who rejected a posting were docked four hours pay and still have a letter on their personal files.”

   Mr Cawthorne denies these assertions as he denied that he responded to Mr Murray’s comment:

   “returning to the payment issue, I just want your clarification. Your position is that the company would not be paying me for the roster I worked while I was overseas as per the EBA but for a roster that you know was worth less.

   Cawthorne: When you put it like that, yes.”

6. It is Mr Cawthorne’s evidence that the trigger for the telephone call was his annoyance at being misled by Mr Murray over the complaint about AHI. Mr Cawthorne agrees that the conversation was heated and that he raised his voice. Mr Murray produced evidence from George Kirala and Mick O’Rance which was admitted without cross-examination that they were travelling in the van with Mr Murray when this conversation took place and stated that:

   “6. Shortly after taking the telephone call, I could audibly hear the voice on the other end of the phone getting louder and sounding agitated. I had the following conversation with Mr Murray:

   Kirala:         “who was that?”

   Murray:    “Peter Cawthorne”.

   7.   I recall that the conversation continued for the rest of our journey to the maintenance hangar. Throughout the conversation, I observed Mr Murray remain calm. When the call ended, I observed him change his demeanor. I observed him to be upset.”

   Mr O’Rance said:

   “5. During the course of our journey, at a time I cannot recall, Luke Murray received a telephone call. At the time of Mr Murray receiving the call, I was seated beside him in the vehicle.

   6.   Shortly after taking the telephone call, I could hear the voice coming through the phone as it was very loud.

   7.   When the telephone call finished, I had the following conversation with Mr Murray:

   O’Rance:     “what was that about?”

   Murray:        “It was Peter Cawthorne. He was talking about the recent problems I am having with him over the Narita posting”.

   8.   I observed that Mr Murray was clearly upset when the call ended.”

7. During the course of cross-examination, Mr Cawthorne in response to a question about the first affidavit:

   “And then on 8 March, he responds to you that – it’s the first day back at work from leave.  He says, “Hope you’re not still doing more than three jobs at the same time.”  Did he say that to you because when he had spoken to you before, you’d said, “Look, I’m very busy, I’ve got a lot to do”?   Yes, look, I’ve inherited most of Mr Jones – well, all of Mr Jones’ responsibilities.  I have been on leave in October, I have been in Singapore relieving for the manager in November, I have been on leave again in January, and during those periods, no one was permanently backfilling my position - - -

   Yes?  - - - – for – I had a whole stack of work accumulated, I was very busy.”

8. I am of the view in regard to the 8 March emails and telephone conversation that Mr Cawthorne was under pressure and reacted badly to Mr Murray’s request for additional RDOs and additional shift loadings. His annoyance at Mr Murray was spurred on by what he considered to be Mr Murray being “economical with the truth” about the AHI complaint. But, if one looks carefully at the emails, the pattern coming from Mr Murray seems to me to be well-mannered and conciliatory whereas Mr Cawthorne’s would appear to be less than that. The first paragraph of the first email that Mr Cawthorne sent seems to me to indicate an irritation that grew and culminated in the telephone conversation. I am satisfied that Mr Cawthorne did raise his voice to Mr Murray in that telephone conversation and possibly spoke in an aggressive tone as suggested by Mr Murray. In the request for further and better particulars of the application, the applicant was asked for particulars for the term “verbally abusing” and, in response the applicant’s solicitor stated:

   “Mr Murray and Mr Cawthorne had a conversation for about 10 minutes. During this conversation Mr Cawthorne was shouting at Mr Murray. When Mr Cawthorne shouted at Mr Murray he shouted at him that he was not going to respond to an email request made by Mr Murray concerning overtime payments, that Mr Murray was the only person who complained, that employees who did not accept the conditions are not given future postings, that if he did not like the conditions then he shouldn’t go. Mr Murray was stressed, anxious and upset at the way he was treated.”

9. The first matter that the Court should consider is whether or not, and heated or not, the conversation with Mr Cawthorne amounted to verbal abuse by him. The Shorter Oxford Dictionary defines “abuse” as:

   “1. misuse; make a bad use of; wrongly take advantage of.

   2.   violate (a person); defile.

   3.   misrepresent; adulterate.

   4.   misuse the confidence of; impose upon; deceive.

   5.   maltreat; injure (especially repeatedly).

   6.   speak insultingly or unkindly to or of; malign.”

   It also relevantly defines “abusive” as:

   “3. employing insulting language;…”

10. I think it would be difficult to describe the conversation between Mr Cawthorne and Mr Murray as abusive because I do not think it was insulting to or unkind of Mr Murray. As Mr Murray says in his own affidavit:

    “At the start of the conversation I would describe Mr Cawthorne’s tone as aggressive. As the call progressed, it quickly changed to hostile as he was yelling at me.”

    I would accept this evidence of the nature of the conversation because I would tend to prefer the evidence of Mr Murray to Mr Cawthorne, having seen both witnesses and having had regard to the manner in which Mr Cawthorne tended to express himself in his emails compared with the way in which Mr Murray did. I think Mr Cawthorne’s temper could properly be described as somewhat shorter than Mr Murray’s. However, even if the conversation did not constitute verbal abuse, it is necessary to consider whether it was of a nature that constituted an injury to Mr Murray in his employment such as to constitute adverse action under the Act.

11. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at [4] the majority considered s.298K(1) of the repealed WRA and observed that “injures the employee in his or her employment” covers injury of “any compensable kind”, and “alters the position of the employee to the employee’s prejudice” is a “broad additional category which covers not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question”. During final submissions in this case, I refused leave to the applicant to amend his pleadings so as to include the claim that Mr Cawthorne’s treatment of Mr Murray amounted to prejudicial alteration of his position; Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor [2010] FMCA 1009. As such, I am restricted to considering whether that action constituted injury to Mr Murray in his employment.

12. The meaning of injury in employment was considered by the Full Court, Spender, Branson and Marshall JJ in Commonwealth Bank of Australia v Finance Sector Union of Australia [2007] FCAFC 18 where Spender J noted the authority of Smithers J Childs v Metropolitan Transport Trust (1981) IAS Current Review 946:

    “So far as the second charge is concerned, I am unable to see that in the narrow sense in which the word 'injure' seems to be used, the informant was injured in his employment on 22 December. It did not occasion him any immediate loss of income. It did not mean that he did not do the same work during the period that his employment in the senior revenue pay clerk's office entailed him in performing that work. It is said that it reduced his status so far as the rest of the staff were concerned and did so as from that very moment. No doubt that is quite probable and probably did occur but it seems to me that that kind of thing is more aptly considered to be an alteration in his position than an injury. I cannot help thinking that 'injury' refers to deprivation of one of the more immediate practical incidents of his employment, such as loss of pay or reduction in rank.”

    Smithers J was referring to s.5 of the Conciliation and Arbitration Act 1904. Philip Evatt J adopted and applied the views of Smithers J in Blair v Australian Motor Industries Ltd (1982) 61 FLR 283, stating at p 290:

    “It is clear in my view that the words [‘or alter his position to his prejudice’] were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment.”

1. In Squires v Flight Stewards Association of Australia (1982) 2 IR 155, Ellicott J appears to give a wider meaning to the term “injure in his employment”. At 164 he states:

   ‘In my opinion action by an employer in standing an employee down even on full pay for a month is action which injures the employee in his employment. In taking such action, he is being singled out by the employer and treated differently to other employees and for reasons not associated with the manner in which he is performing his work. An employee may not be entitled, under his contract of service, to demand work at a particular time or place, but when he is stood down, not because work is unavailable, but because of a request by his union, the taking of that step is, in my opinion, an injury to him in his employment.

   The words "injure in his employment" are in the context of s. 5 words of wide import. I do not regard them as referring only to financial injury or injury involving the deprivation of rights which the employee has under a contract of service. They are, in my view, applicable to any circumstances where an employee in the course of his employment is treated substantially differently to the manner in which he or she is ordinarily treated and where that treatment can be seen to be injurious or prejudicial.’”

2. Although the notion of “singling out” may be a useful way of characterising a particular injury in employment and has been endorsed in subsequent authorities; Byrne v Australian Ophthalmic Supplies Pty Ltd [2008] FCA 66; Community & Public Sector Union v Telstra Corporation Ltd [2001] FCA 267; (2001) 104 IR 195 at 199, it does not in itself constitute the injurious treatment. I am of the view that “injury” in this context continues to refer to the deprivation of one of the more immediate practical incidents of employment; Childs v Metropolitan Transport Trust (1981) IAS Current Review 946; Maritime Union of Australia v Geraldton Port Authority (1999) 165 ALR 67. This view is supported by a consideration of the circumstances which have given rise to a finding of injury in employment. These include the forced removal of a worker from a worksite; Construction Forestry Mining & Energy Union v Hamberger [2003] FCAFC 38, the attempted transfer of an employee to a worksite a considerable distance from her home and subsequent suspension in response to her refusal to relocate; Byrne v Australian Ophthalmic Supplies Pty Ltd (supra), and stand down; Squires v Flight Stewards Association of Australia (supra).

3. The lack of recent authority on the distinction between “injury” and “prejudicial alteration” is perhaps explained by the practice of pleading both categories of adverse action; for any action taken by an employer that constitutes an injury in employment will necessarily alter the position of the employee to his or her prejudice. It is my view that Mr Cawthorne’s reaction to Mr Murray’s queries altered Mr Murray’s position to his prejudice in that in that it reduced his status in relation to his colleagues and it upset him. However, the applicant has chosen to plead injury only and, as such, the relevant question is whether Mr Cawthorne’s reaction to Mr Murray’s request impacted negatively upon one of the more immediate practical incidents of his employment, including (though not limited to) his remuneration, duties or hours of work, or resulted in an injury of any compensable kind. I am satisfied that Mr Cawthorne’s treatment of Mr Murray, though unfair, did not constitute an “injury” in his employment.

4. I should mention that the Applicant’s final written submissions at hearing included the allegation that Mr Cawthorne had refused to consider Mr Murray’s claim for unpaid shift penalties and allowances during the phone conversation on 8 March. However, in his affidavit, Mr Cawthorne gave evidence that he did not refuse to deal with Mr Murray’s claim but was concerned to see further evidence in support of the claim before he could progress the matter. He deposes to saying words to the effect of:

   “I have just returned from leave and I don’t have time to deal with you or your complaint until you provide me with supporting evidence of the actual hours you worked in Narita.”

   I accept this evidence and note that the dispute was dealt with.

1. The allegation concerning future workplace postings

1. In its amended application, the applicant states:

   “The first respondent and/or the second respondent denied the employee any future possible international postings on the basis that the employee exercise or proposed to exercise [his workplace rights]. Denying this benefit to the employee injured him in his employment and/or altered his position to his prejudice and was adverse action taken against him.”

   The applicant argues that when the first respondent, through its managers Mr Thompson and Mr Panagiotopoulis, stopped all overseas postings for LAMEs from Brisbane, Qantas altered Mr Murray’s position to his prejudice:

   “This amounted to an adverse affection of, or deterioration in, the advantages enjoyed by Mr Murray before the conduct in question because he, along with all of the LAMEs at the Brisbane terminal, was denied a benefit of employment that other employees at other terminals enjoyed.

   It also amounted to an adverse affection of, of deterioration in, the advantages enjoyed by Mr Murray before the conduct in question by adversely impacting upon his working relationship with his colleagues in Brisbane International Terminal. The applicant submits that the action was taken because Mr Murray was entitled to shift penalties and allowances under the agreement during his posting in Narita; he complained that those entitlements were not paid and he initiated a dispute resolution process under the agreement.”

2. It will be recalled that Mr Murray raised the question of a discrepancy between what he was paid in Brisbane and under the Narita roster with Mr Thompson on 8 March. Mr Thompson referred him to Mr Cawthorne. On 11 March 2010 Mr Cawthorne sent an email to Mr Thompson which I shall set out in full because, over the protestations of Mr Kenzie QC, I have drawn an inference from this email, which I believe is reinforced by certain others, that there was a certain financial concern on the part of Qantas about the claims being made by Mr Murray. In the email Mr Cawthorne first makes a remark concerning a possible claim by Mr Hagan or Mr Harding for overtime and then there is the reference to Mr Murray and Mr Cawthorne’s view that he should be paid in accordance with the BNE roster. I think there is some significance in Mr Cawthorne resurrecting a posting that Mr Murray did in Honolulu some years prior and I infer from the email as a whole that Mr Cawthorne did not approve of Mr Murray’s claim.

   “Mark,

   As discussed I need A330 LMA support for NRT from 23 March, I believe Simon Hagen was interested as was Sean Harding. Happy to have either for as long as they can be released however expect that they will not be claiming OT etc on return. Do you want to have that conversation or should I?

   FYI had a bit of a spat on the phone the other day with Luke Murray re claims that he worked hours in excess of his BNE roster and his shift penalty average was higher. I basically told him that I would not respond to his claims as his letter of posting stated that he would be paid per his BNE roster. I told him that he should carefully consider any future offers of OS posting before accepting. He said that he would discuss these matters “with the boys”. I should have mentioned (but didn’t) the week posting he did in HNL for JQ a few years ago where he would have worked a maximum of 16 hrs per week and was paid per his BNE roster. On return to BNE the company did not seek to recoup the 80hrs he “owed”. It’s a different matter when the balance is not in favour of the LAME.

   Regards

   Peter Cawthorne.”

3. Mr Cawthorne’s email to Mr Thompson would not have been entirely surprising because Mr Honsa gave evidence that he had spoken to Mr Thompson on 10 March and Mr Thompson had said to him:

   “However, unless I get clarification on the posting conditions for each Brisbane person who does a posting by them sending me an email to acknowledge the posting conditions, I am going to put a hold on all Brisbane staff carrying out these duties.”

   Mr Thompson denies this conversation took place. Mr Honsa responded to cross-examination about it by indicating that he acted upon Mr Thompson’s request by verbally informing all the LAMEs who were prospectively to go on overseas postings that they had to send an email or speak to Mr Thompson themselves confirming that they were happy with their letter of posting. Mr Honsa, although he admitted to being a friend of Mr Murray’s was called by Qantas. He is not in a senior managerial role like Mr Thompson. I found his evidence to be given in a straight-forward and careful manner. I am satisfied that he correctly reported his conversation with Mr Thompson and that Mr Thompson was thinking of refusing to support secondments out of Brisbane as early as 10 March.

4. On 20 March Mr Thompson sent an email to Mr Honsa and Mr Cawthorne. It refers first to a posting of another LAME to Singapore and then asks whether there is an agreed position on posting conditions referring to the differing opinions of Mr Cawthorne and Mr Murray. The second part of the email is addressed to Mr Cawthorne:

   “Peter, maybe you need to have a conversation with Jeff to clarify your business expectations about these trips in general. Until I see a clear standard approach in accordance with this letter of posting for all, I am reluctant to give a blanket approval. Let me know what you guys resolve please.”

   The reference to the business expectations seems to me also to be referring in a veiled way to the cost of sending LAMEs on overseas postings. On 25 March Mr Murray wrote to Mr Cawthorne with a copy to Mr Thompson and Mr Panagiotopoulis. The first part deals with the medical issue and it then goes on to say:

   “As for the shift penalty issue, my L.O.P says that I will be paid as per my normal home base roster or calculated SDA, whichever is greater. When I noticed the anomaly between the rosters, I contacted the acting Service Delivery Manager, who gave me his assurance that I would be paid the higher of the two, as has been done previously. If you now choose to disregard this assurance, I guess that is your prerogative. The fact that you ticked the BNE roster box on my L.O.P. is irrelevant, because as you stated to me, you didn’t bother to calculate the SDA. I was also unable to compare the two as I didn’t receive a copy of the NRT roster until several days after I arrived in Japan.

   From our previous discussion, I am left with the impression that the only reason you chose to dismiss my claim is because no one else has raised the anomaly previously, although I explained that I am the first person to be posted to NRT since the new roster was introduced. I don’t believe that you have the right to reject my claim without even checking its validity. On this basis I am initiating the Dispute Resolution Process in accordance with QF/ALAEA EA VIII S6.1.2, I suggest that we schedule a meeting with senior management to attempt to resolve this issue at your earliest convenience.

   Regards,

   Luke.”

   Mr Murray also spoke to Mr Thompson on that day. He reports that Mr Thompson said to him:

   “Although it is your right to do so, you should be aware that to make the problem go away my response will be to cancel future postings from Brisbane.”

   Mr Thompson denies making those remarks and says that he wanted to put a hold on the postings so that:

   “We could stop, look at the issue, and not inflame the situation by sending more people to a situation where they may not receive their full entitlements. This is consistent with action taken by Qantas in the past in respect of previous issues about roster problems from particular ports. I refer to my collection of the issues in Sydney when I was posted Sabah to fill gaps caused by those issues in paragraph 7 above [a reference to an incident in 2004 when assignments from Sydney were suspended when there was an issue about some overseas entitlements.”

5. Mr Thompson then discussed the matter with Mr Panagiotopoulis on 26 March. He repeated that he believed Qantas needed to step back and see what was causing the issue. He suggested to Mr Panagiotopoulis that, in the meantime, no one should be sent overseas from Brisbane. At [21] of his affidavit, Mr Thompson deposes:

   “After some further discussion, Mr Panagiotopoulis and I decided to temporarily suspend requests of postings from Brisbane in order to ensure that other employees were not disadvantaged on overseas postings.”

6. Mr Thompson said he believed the problem could be resolved quickly and that he had no intention of permanently suspending postings from Brisbane and I fully accept both of those statements. What I find difficult to accept is the suggestion that there was some altruistic motive in the suspension of preventing disadvantage to Brisbane employees. I took this up with witnesses and with counsel during the course of the hearing and I am afraid that none of their responses convince me. I could not understand and I do not understand in what way Brisbane employees would be disadvantaged if it was the Qantas procedure laid down in the EBA that persons posted overseas would be paid the higher of their local shift allowances or the one which they worked whilst overseas. All it needed was to advise employees that the exact difference between the Brisbane allowances and the Narita allowances which were the subject of Mr Murray’s complaint had not yet been calculated and, therefore, there might be some delay in paying them any extra to which they were entitled. That would not disadvantage them in anyway. But the finding that I must make is whether I can infer an intention to injure Mr Murray in his employment by the making of that decision. It is not a breach of the WRA to make an illogical decision. Was it just poor management on the part of Mr Thompson and Mr Panagiotopoulis or was it some form of collective punishment for Mr Murray’s decision to institute grievance procedures?

7. In his written submissions, Mr Slevin for Mr Murray quotes from Mr Thompson’s cross-examination:

   “So in any event, you discussed that you had two claims.  One of the claims was Mr Murray’s claim?   We had two issues.  I wouldn’t – yes.

   Those issues were the reason that you made a decision to suspend the postings?   No, not the specific issue.  So allow me to repeat myself.  I said we’d had a number of people over 20 years go away, no issues, no dramas.  Everything worked fine.  All of a sudden, two in a row we had different issues, but we had issues with the posting somehow.  Well, what’s changed here?  There’s something that needs to be fixed.  Denis agreed.  So let’s suspend that particular group of people while we fix those issues if we can do that; he agreed we should do that, so we did.

   So you - - -?   It was a collective decision.

   So the reasons for the decision were the issues that had arisen recently;  that’s the case, isn’t it, from what you’ve just said?   Yes.

   Yes.  One of the issues that had arisen recently was Mr Murray had made a claim for certain entitlements.  That’s the case, isn’t it?  That was one of the two issues.  Do you agree with that?   Yes, yes.

   And so part of the reason you made the decision was that Mr Murray had made some claims for his entitlements?   Yes, yes.” [T123]

8. Also on 26 March Mr Harding, a LAME who had accepted a posting in Narita from 9 April, rang Mr Cawthorne. He deposed that Mr Cawthorne said to him:

   “All overseas postings out of Brisbane have been cancelled because the company is in dispute with Luke Murray and this will be the case until the dispute is resolved.”

   Mr Harding was not called for cross-examination. And Mr Cawthorne in his cross-examination agreed with what he said.

9. On 27 March Mr Honsa sent an email to Mr Thompson and Mr Panagiotopoulis cc’d to Mr Cawthorne:

   “Gents

   Can someone please advise me what is going on at the moment re Brisbane posting coverage in general. I need clarity for my manpower planning etc.

   Mark I know we spoke yesterday on phone but I find it very hard to understand your position. Currently one of the Brisbane International engineers is in dispute with the company over his last posting. As I have only spoken briefly over the phone with him the only facts I have were that he was owed time due roster worked in Narita. I have not seen any roster so cannot comment. The engineer involved has had 12 RDOs placed on roster totalling 130hrs. I hear rumours that he is now requesting adjustments to his penalties etc due posting. This is between him and the company and should not affect other staff who do not have an issue with company but it has.

   As per previous postings to Nagoya and Narita Barney Jones would advise me by email of any days owed because of hours worked on posting, I would then place these RDOs onto Bne Intl roster on mutually agreeable days. Issues with roster penalties etc are already covered by the standard company “Temporary Assignment Agreement” that each engineer signs prior to his posting. Refer page 4 of 6 under “Salary and other conditions” Pay as per SDA (Special Duties Allowance) in lieu of Home base roster. I know it may take time to work out which is best to use so we don’t end up in dispute but let me say for any staff from Brisbane LMO I am willing to do this calculation as long as I am supplied with the published posting port roster. I have done this before for International staff as their wage averaging is quite a lot lower than the current domestic 4 on 4 shift. Approx 10%.

   I have advised staff who have been impacted by this dispute to email Denis and Mark with their own stand on this. This will allow you to make a [sic] informed decision on using Brisbane based staff for future postings.

   Why the coverage of Noumea has been dragged into this I am at a loss. Since Brisbane took over most of the coverage of this port from Sydney we have had a very flexible group of 5 engineers covering each weekend.

   Rosters are changed to allow coverage without any direct overtime and if needed very minimal backfill O/T. I have spoken with each engineer involved and they don’t have a problem with the current arrangement for Noumea coverage.

   Regards,

   Jeff Honsa.”[1]

   The paragraph which commences with the words “I have advised staff” appears to me to be referring to Mr Honsa’s conversations with the staff about confirming to Mr Thompson that they understood and were happy with the letter of posting. Once again, I draw the inference that this was a pay issue. Mr Thompson wanted to be clear that the people going overseas were happy to be paid at the Brisbane roster rate and not at the Narita one. There was no reason proffered to me as to why, apart from this difference in the roster rates, Brisbane staff would not be used. In fact, the contrary is the case. Mr Thompson deposed that it was important that all the Australian engineering bases supported overseas postings. Mr Honsa’s remarks about minimal backfill overtime in Noumea also indicate concern about pay. The suspending of overseas postings to Noumea in addition to Narita when it was clear that the problem was because of the difference between the Narita roster and the Brisbane roster is also capable of raising the inference that the motive for the suspensions was other than the intention not to inflame the situation by sending people to a situation where they may not receive their full entitlement.

   [1] Annexure JH2 to the affidavit of Jeffrey Honsa affirmed 27 October 2010.

10. On 27 March 2010 Mr Murray spoke with Mr Honsa. Mr Honsa told him about the suspension of relief postings from Brisbane and suggested that Mr Murray’s workmates would not be happy and that the Sydney managers might overlook Mr Murray for future postings. From the witness stand, Mr Honsa told the Court that he differentiated between advice that he gave in his position as a DMM, as a union representative and as a friend. I think that any advice he gave to Mr Murray on this occasion was given to him as a friend and I would not propose to use this conversation to influence my views as to what Qantas’ motives might have been. On the other hand, on 27 March 2010 Mr Ryder sent an email to Mr Cawthorne and Mr Thompson about his planned posting to Narita in May. Mr Cawthorne responded on 28 March:

    “…[o]ne of your fellow LAMEs has chosen to raise a grievance with the AlAEA in relation to a posting to NRT which he is quite entitled to do, however, as such, until the grievance is resolved or withdrawn, we cannot expect anyone else from BNE to commence an overseas posting. Following the outcome of the grievance resolution we may need to look at how and with whom we support any offshore ops.”

    Although that email was copied to Mr Thompson and Mr Panagiotopoulis and although they suggested that they had not authorised the last sentence, they did nothing to inform the workforce that this was an incorrect understanding of Qantas’ attitude to the grievance.

1. Mr Panagiotopoulis gave evidence supporting Mr Thompson’s approach to the suspension. However, he accepted that Mr Thompson was the driving force behind the proposal and he agreed to it rather than proposed it himself. I am quite satisfied that, once Mr Panagiotopoulis came onto the scene and spoke with Mr Murray, the grievance was on its way to being settled, although the eventual payment was not made until August. Looking at the evidence as a whole, I cannot be satisfied with the explanations put forward by the Qantas witnesses that the making of the claim by Mr Murray and the instigation of the grievance procedure was not at least part of the reason for suspending overseas postings, not only to Narita but also to Noumea from Brisbane.

2. Did the suspension injure Mr Murray in his employment or alter his position to his prejudice? The respondent argues that there was no way that Mr Murray was likely to be going on a secondment during the period in which the suspension was operative because he had just been away and had been put at the bottom of the list. I do not think that is a correct way to articulate the test. Mr Murray was a LAME in Brisbane whose employment provided him with a number of benefits one of which was the opportunity to volunteer for overseas postings. That benefit was removed by the decision to suspend postings to everyone. When the suspension was put in place, there was no temporal limit, whatever Mr Thompson’s intentions may have been. Mr Murray may have been the person at the back of the list but it was not a very long list and other persons may well have had reasons why they did not wish to undertake such a posting at a particular time. Mr Murray had the benefit of being able to apply for an overseas posting on 24 March 2010 but not on 26 March. To my mind, his employment was adversely impacted by the decision and he was thereby injured or, at the very least, had his position altered to his prejudice which was the alternative way in which the action was pleaded.

1. The Toulouse allegations

1. These allegations are set out in the amended application as follows:

   “d. For the purpose of determining an application by the employee for the position of “Production Inspector – Airbus 9005365 Toulouse France”; the First Respondent assessed the employee’s performance of his duties as a licensed aircraft maintenance engineer as being below the expectations of the First Respondent therefore attracting a ranking of 2 out of 5 on the basis that the employee exercised or proposed to exercise the workplace right described in 1A(i) and/or 1A(ii) and/or 1A(iii) above or on the basis that the ALAEA exercised or proposed to exercise the workplace right described in 1B above. By giving the employee a ranking of 2 out of 5 that ranking being below the expectations of the First Respondent, the First Respondent injured the employee in his employment and/or altered his position to his prejudice, and was adverse action taken against the employee.

   e.   The First Respondent denied the employee the opportunity to participate in the second round of the interview process for the position of “Production Inspector – Airbus 9005365 Toulouse France” on the basis that the employee exercised or proposed to exercise the workplace rights described in 1A(i) and/or 1A(ii) and/or 1A(iii) above or on the basis that the ALAEA exercised or proposed to exercise the workplace right described in 1B above. Denying the employee the opportunity to participate in the second round of the interview process injured him in his employment and/or altered his position to his prejudice, and was adverse action taken against the employee.”

   Mr Murray deposes that on or about 31 March 2010 he applied for an internal job at Qantas as a “Product Inspector – Airbus (005365) Toulouse France”. This was a temporary position for 12 months with an option for a further 6 months and was said to be a position that would develop the successful applicant’s customer and stakeholder management skills. The position was responsible for an overview of technical aspects relating to the manufacture and delivery of Airbus A380 and A330 aircraft. The responsible officer for the job was Mr Panagiotopoulis. Mr Murray wrote to him with his resume on 29 March. Mr Murray received a first round interview for the position. A number of Brisbane engineers also applied. Mr Murray received an interview on 3 June. Thereafter, Kristin Matthews sent an email to Mr Thompson:

   “Dear Mark,

   The following Brisbane Line Maintenance employees have recently been interviewed for the position of Production Inspector Airbus in Toulouse and we would like to consider them further for the position

   [masked]

   Luke Murray.

   This position is highly sought after and the standard of applicants has been very high. In order to get a fair assessment on each applicant’s demonstrated behaviour within the business, we have put together the following Reference Check Template.

   It would be greatly appreciated if you could complete a reference check for each of the above employees and return to me by COB Monday 21 June 2010.

   Should you have any questions please don’t hesitate to contact me.

   Thank you for your assistance.

   Regards,

   Kristin Matthews.”

2. On 25 June 2010 Ms Matthews sent an email to Mr Murray thanking him for participating in the interview and advising him that he had reached the next stage of the recruitment process and that Qantas would be in contact with him shortly regarding the time and location of a second interview. Mr Thompson and Mr Panagiotopoulis gave evidence that about 11 people received that email. It would appear that there had been a misunderstanding in the Qantas procedures. What was decided was that the 11 people who had done well enough in the interview to be considered for a second round interview were to be made the subject of reference checks from their superiors. When the reference checks came in, the responses would be graded together with the results of the first interview and the top few candidates would be given a second interview (there was more than one position available).

3. When Mr Thompson received the reference check, he did not advise the candidates about it and did not seek their views. Although he had not himself worked at Toulouse he knew people who had and he thought he had a thorough understanding of the requirements of the job. When he looked at the reference check questions, he responded to them in respect of each of the candidates on the basis that the questions were not about their current work but about how they could undertake the work that Mr Thompson thought was required of them at Toulouse. Although Mr Panagiotopoulis supported this method of providing the reference, it could be thought that Mr Thompson was not sufficiently qualified to provide the checks in this way. That seems to me to be a failing of the type referred to by Weinberg J National Union of Workers v Qenos Pty Ltd (supra) i.e. one with which the Court should not be concerned. What should concern the Court is whether there is any evidence that might suggest that the treatment of Mr Thompson was different from the treatment of any other candidates. The exhibits of the other candidates’ reference checks and the evidence of Mr Thompson satisfy me that he dealt with all of the candidates in a similar manner. The marking seemed to me to be fairly consistent. It is true that Mr Murray received a significant number of “2s” which is essentially a fail but then so did some of the other candidates. The respondents have done an exercise by which they claim to have established that, even if Mr Murray had been marked up by Mr Thompson, he would not have received the aggregate marking required to take him through to the second interviews. They claim that, therefore, there was no loss. Once again, I have my doubts as to whether this is the correct test. But I do not think it is in any way relevant because I am satisfied by Mr Thompson’s evidence that he has overcome the reverse onus in respect of this claim. I say this notwithstanding Mr Murray’s evidence that, in a conversation with Mr Thompson, they discussed why Mr Thompson had done the reference check without referring to him and Mr Thompson had allegedly said words to the effect “it’s not like I gave you 2s or anything” and notwithstanding Mr Thompson’s earlier refusal to provide Mr Murray with a copy of a reference check. I would need much more evidence of Mr Murray’s suitability for the position to overturn the view I have already expressed that Mr Thompson’s markings of all the candidates bore a consistency that negate a suggestion of unusual treatment of Mr Murray.

4. The second part of the claim in respect to the Toulouse position relates to second round interview based upon the email that Mr Murray had received. I am quite satisfied that this was an error, that Mr Murray was not singled out (Mr Thompson gives evidence of another candidate who also received the email by mistake) and that Mr Murray’s action in relation to his grievance claims had nothing whatsoever to do with it. The mistake in issuing the emails was not that of Mr Thompson but of Ms Matthews. No one has suggested she had any awareness of the dispute between Mr Murray and Qantas.

The coercion complaints

1. The first coercion complaint

1. The preceding paragraphs deal with the applicant’s claims of breaches of s.340 of the FWA. The application then proceeds to make claims under s.343. The first claim is that:

   “The second respondent verbally abused the employee for exercising workplace rights described in 2(1) above. Abusing the employee was done with the intent of coercing the employee into not exercising his workplace rights.”

   Any decision on the s.343 complaints must be made with a full understanding of the meaning of coercion in this legislation.

2. In a recent decision of Logan J in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited (supra), his Honour noted the lack of any prior authority directly concerned with the construction of s.343 or its predecessor, s.400 of the repealed WRA. However, the meaning of coercion was considered by Gyles J in Finance Sector Union v Commonwealth Bank of Australia (2000) 106 FCR 16 (“Finance Sector Union”) in relation to s.170NC of the WRA. In that case the Court considered whether the commencement of the proceedings for interpretation of an award was done with intent to coerce the bank to concede to the Union’s claims in contemporaneous enterprise bargaining. Gyles J relied on Schanka v Employment National (Administration) Pty Ltd (2000) 170 ALR 42 which concerned the meaning of duress which his Honour considered to be equivalent to coercion:

   "18. The distinction between the pressure applied to an actor which constitutes duress both in its ordinary English meaning and its connotation in the general law, and the consequences as a matter of law which may attend the application of that pressure, was recognised, we consider, by Lord Scarman in Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 400 where his Lordship said:

   It is, I think, already established law that economic pressure can in law amount to duress; and that duress, if proved, not only renders voidable a transaction into which a person has entered under its compulsion but is actionable as a tort, if it causes damage or loss: Barton v Armstrong [1976] AC 104 and Pao On v Lau Yiu Long [1979] UKPC 2; [1980] AC 614. The authorities upon which these two cases were based reveal two elements in the wrong of duress: (1) pressure amounting to compulsion of the will of the victim; and (2) the illegitimacy of the pressure exerted. There must be pressure, the practical effect of which is compulsion or the absence of choice. Compulsion is variously described in the authorities as coercion or the vitiation of consent. The classic case of duress is, however, not the lack of will to submit but the victim's intentional submission arising from the realisation that there is no other practical choice open to him. This is the thread of principle which links the early law of duress (threat to life or limb) with later developments when the law came also to recognise as duress first the threat to property and now the threat to a man's business or trade.”

   Gyles J distinguished coercion from other concepts including influence, persuasion and inducement [20].

3. That decision was cited with approval by Weinberg J in National Tertiary Education Industry Union v Commonwealth of Australia [2002] FCA 441 where, after considering the authorities, his Honour concluded at [103]:

   “The approach to the expression "intent to coerce" taken in each of the authorities set out above makes it clear that what is required is an intent to negate choice, and not merely an intent to influence or to persuade or induce. Coercion implies a high degree of compulsion, at least in a practical sense, and not some lesser form of pressure by which a person is left with a realistic choice as to whether or not to comply.

   I am fortified to some degree in my view that this is the correct meaning to ascribe to the expression "intent to coerce" by the observations of Lord Romilly MR in Ellis v Barker (1871) 40 LJ Ch 603. His Lordship accepted that coercion may take an infinite number of forms. However, he noted that the moment that a person who influences another does so by threatening to take away something he then possesses, or by preventing him from obtaining an advantage he would otherwise have obtained, it then becomes coercion and ceases to be persuasion.”

   In that case, Weinberg J considered that the offer of additional funding to institutions of higher education by the Commonwealth made conditional upon meeting programme criteria was not intended to coerce institutions into entering certified agreements on particular terms. Similarly, in Finance Sector Union Gyles J was not persuaded that the Union in that case had commenced proceedings with the intent to coerce the Commonwealth Bank to do something against its will. His Honour took into account the individual characteristics of each party in drawing that inference, noting the union representatives were experienced and not likely to make the mistake of believing that the Bank, one of Australia’s largest corporations, could be easily coerced.

4. In Seven Network (Operations) Ltd v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia [2001] FCA 456, a decision involving the threat to commence industrial action, Merkel J found that the threats had been made with an intent to coerce the employer to enter into a local, rather than a national, enterprise agreement in contravention of s.170NC(1) of the WRA. In that case, the Union had threatened disruption to the Seven Networks coverage of the AFL finals and the Olympic Games, a time which was considered the most important period for live coverage by Seven Network in the history of its business.

5. The second limb of the test considered in Finance Sector Union requires that the means of coercion are unlawful or otherwise illegitimate [40]. Gyles J did not have to make a finding on this point, though his Honour considered that it would be unlikely that the decision to exercise the statutory jurisdiction of the Court to settle a live and genuine dispute could be regarded as illegitimate. In Seven Network (Operations) Ltd (supra) Merkel J observed at 388:

   "The requirement that the pressure exerted be unlawful, illegitimate or unconscionable must be considered in the context of the scheme of the Act and of the fact that, subject to the immunity in respect of protected industrial action under s 170MT of the Act, many forms of industrial action are unlawful: see Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots [1991] 1 VR 637.

   The requirement of unlawfulness etc might, in a sense, be said to have been superimposed upon the ordinary meaning of "coercion": cf Hanley at 534 [11]. However, without such a requirement s 170NC(1) could have an anomalous operation in so far as it might prevent the legitimate exercise of rights by employees or employers. In Hanley the Full Court did not really consider this issue. In all the circumstances I consider that it is appropriate to apply the approach taken to s 170NC(1) in Cadbury Schweppes, Finance Sector Union and Qenos unless I am satisfied that that approach is clearly wrong, which I am not.”

   In that case, the Union claimed that the threatened industrial action was protected action under the Act. However, his Honour found that the union representatives knew that the threatened action may not be protected action but refrained from making any proper enquiry about the matter. In this way, the action of the Union was found to be unlawful.

6. I have already noted that I am not convinced that the telephone conversation constituted verbal abuse. However, the conversation could be described as intimidating because of the manner in which Mr Cawthorne expressed himself (his raised voice) and the final threat which I have found to have been made:

   “The guys who go away and accept the conditions that they are given are the ones who get asked to go away next time.”

   In regard to the first of the two elements of coercion, it seems to me that the final threat was one to “take away something Mr Murray then possessed”, that being the untrammelled right to apply for future secondments if he continued his claim for additional benefits. But was the action unlawful? Prior to preparing these reasons it occurred to me that, if I accepted Mr Murray’s evidence, the actions of Mr Cawthorne could be said to have discriminated between him as an employee who was exercising his workplace rights and other employees who did not exercise their workplace rights when they went on secondment. Because I had not been specifically addressed as to this question, I wrote to the parties and asked them to make submissions. Not unexpectedly, the applicant responded that it accepted the Court’s assessment of the position, including that the alleged discrimination constituted the unlawful conduct. The applicant’s submissions then went on in considerable detail to argue that, although this discrimination had not been specifically pleaded, it had been a matter that was brought up at the hearing and thoroughly argued so that it could be the subject of a finding by the Court even though an amendment of pleadings had not been sought. The applicant cited a decision of Cameron FM in Fair Work Ombudsman v Centennial Financial Services Pty Ltd & Ors [2010] FMCA 863 where his Honour reviewed the authorities including Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; see Sabag v Health Care Complaints Commission [2001] NSWCA 411; Maloney v Commissioner for Railways (NSW) (1978) 52 ALJR 292; Water Board v Moustakas [1988] HCA 12; (1988) 180 CLR 491 and Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286-287.

7. I take from these authorities that, where all relevant acts or omissions have been clearly identified in the proceedings and have been thoroughly litigated, it may not lie in the mouth of a respondent to argue that, as those matters were not pleaded, they cannot be taken into account. In Banque Commerciale SA, en Liquidation v Akhil Holdings Ltd (supra) Mason CJ and Gaudron J said:

   “Accordingly, the circumstances in which a case may be decided on a basis different from that disclosed by the pleadings are limited to those in which the parties have deliberately chosen some different basis for the determination of their respective rights and liabilities. ...”

   In the instant case, the respondents point to the fact that it was not directly suggested that discrimination could constitute the unlawful element of the prohibited coercion. The respondent points out that:

   “Had the case of alleged discrimination been pleaded in the way contemplated in the letter, the focus of the evidence and questioning may well have been upon the other employees, some of whom were witnesses and were not required for cross-examination given the nature of their evidence and the nature of the case as pleaded.”

1. Having read the transcripts, I am satisfied that the issue of discrimination did not arise for discussion during the hearing. If discrimination had been specifically pleaded or raised at the hearing, the respondent may well have had to consider what constituted the unlawful element within it. Discrimination on the basis of race, age, sex or disability is clearly unlawful under Commonwealth legislation but it is not alleged that this discrimination was based on any of those matters. The Commonwealth legislation is difficult and a party defending such an action would be entitled to argue that what occurred does not fall within the definition of “less favourable treatment”. What might seem a simple matter on first consideration later proves to be complex. I am not satisfied that the applicant pleaded or brought this issue within the confines of the case at trial and I would not be prepared to grant any amendment to plead it now. The case has been completed.

2. In my discussion of the applicant’s first claim under s.340, I indicated that Mr Cawthorne’s treatment of Mr Murray and the veiled threat that, if he pursued his claim, he would not be selected for future postings might be considered action which altered the position of the employee to his prejudice. This, in turn, would provide sufficient grounds for concluding that Mr Cawthorne’s actions were unlawful in the context of the FWA and that he had, therefore, exerted an illegitimate form of pressure on Mr Murray. Although this was not specifically pleaded by the applicant, either in relation to 1(a) or 2(a) of the Amended Application filed on 6 August 2010, I am satisfied that the relevant acts were clearly identified in the proceedings and thoroughly litigated. It is also relevant that the respondent did not ask for particulars of the coercion claim in their request for particulars date 7 June 2010 (exhibit C).

3. I think Mr Cawthorne’s intemperate words to Mr Murray did alter his position to his prejudice in the sense explained by their Honours in Patrick Stevedores (supra). The fact that the conversation was witnessed by two of Mr Murray’s colleagues meant that his status was comparatively reduced and the threat of adverse affection or deterioration in the advantages enjoyed by Mr Murray unless he chose not to exercise his workplace right was clearly adverse action (I note that the meaning of adverse action extends to the threat to take adverse action under s.342(2); see also Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2010] FCA 590).

4. I am satisfied that the threat to prevent Mr Murray going on future postings was an attempt to bring illegitimate pressure on Mr Murray to prevent him from further pursuing his claim. Mr Cawthorne’s threat and the intimidatory manner in which it was delivered indicate an intention to coerce. I am satisfied that all of the elements of the civil remedy provision have been found to exist. I do not accept an argument that the coercion is nullified by the fact that Mr Murray was well down the list of persons likely to be chosen for a posting for the reasons explained at [41].

1. The second coercion allegation

1. This allegation is not pressed against the second respondent who was not responsible for the decision to suspend international postings. The allegation in the amended claim reads:

   “The first respondent [and/or the second respondent] denied the employee and other employees of the first respondent any future possible and/or planned international postings on the basis that the employee exercised or proposed to exercise the workplace rights described in 2(1) and 2(2) above. Denying these benefits to the employee and other employees was done with the intent of coercing the employee into not exercising or proposing to exercise his workplace rights.”

   I have not set out the workplace rights described in this allegation because it is accepted that the applicant has those rights and did seek to exercise them.

2. The view to which I have come in relation to this action by Qantas through its employees, Mr Thompson and Mr Panagiotopoulis, was that I could not be satisfied that the exercise by Mr Murray of his workplace rights was “not at least part of the reason for suspending overseas postings” and, in considering whether or not this activity amounted to coercion as defined in the authorities considered earlier, one must remember that, as pleaded, the coercion relates only to Mr Murray. In other words, the action was alleged to be designed to put pressure on Mr Murray not to exercise his workplace rights as opposed to others. The inference is twofold. First that Mr Murray would back off from his claims in order to be reinstated as a person who could be sent overseas. Second that Mr Murray would feel guilty so far as his workmates were concerned or that his workmates would directly put pressure upon him to drop his claims. I am of the view that, whilst the evidence indicates that Qantas were upset by Mr Murray’s activities and were anxious to ensure that there was no further flood of claims from overseas postings, they appreciated that there was more than one way of preventing this happening in the future, for example by making appropriate changes to the rostering arrangements. Thus it would be difficult to define the action as one that was intended to negate choice as opposed to being one intended to influence or persuade or induce. The authorities talk about coercion putting the coerced party in a position where he has no choice and intending that result. I am unable to see that intention here. Insofar as the action of Mr Thompson and Mr Panagiotopoulis constituted something other than a suspension for the purposes of “understanding the problem”, it was intended as a slap on the wrists for what had occurred as opposed to an activity to prevent Mr Murray from continuing his claim. Whilst there is evidence that a number of LAMEs had their postings withdrawn, the only evidence that anyone said anything to Mr Murray about this is from Mr Honsa and I have found that Mr Honsa made those comments “as a friend” [39] and not on behalf of anyone. I find that Qantas did not have the necessary coercive intent.

Conclusion

1. I have found that the applicant has made out its claims in respect of:

   1.Adverse action amounting to altering Mr Murray’s position to his prejudice based on the suspension of international postings (Amended Application 1B(b)) and;

   2.Coercion based on the phone conversation between Mr Murray and Mr Cawthorne (Amended Application 2(a)).

   I have found that it has not made out its claim of:

   1.Adverse action in relation to the phone conversation between Mr Murray and Mr Cawthorne (Amended Application 1B(a));

   2.Adverse action in relation to the Toulouse allegations (Amended Application 1B(c), (d) and (e)) and;

   3.Coercion based on the suspension of international postings (Amended Application 2(b)).

   The parties have agreed that there should be a separate hearing on penalty. I appoint 9.30 am on Wednesday 16 February 2011 for directions at which time I will also set the matter down for hearing.

I certify that the preceding sixty (60) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date:  16 March 2011