Blood v Kareela Aviation Pty Ltd
[2022] FedCFamC2G 432
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Blood v Kareela Aviation Pty Ltd [2022] FedCFamC2G 432
File number: SYG 1512 of 2021 Judgment of: JUDGE CAMERON Date of judgment: 2 June 2022 Catchwords: INDUSTRIAL LAW – Alleged breach of Fair Work Act 2009 (Cth) and a modern award – consultation about major workplace change – redundancy. Legislation: Evidence Act 1995 (Cth) s 140
Fair Work Act 2009 (Cth) ss 23, 45
Cases cited: Australian Nursing and Midwifery Federation v Bupa Aged Care Pty Ltd [2017] FCA 1246
Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 248 FCR 18
Re Consultation clause in modern awards (2013) 238 IR 282
Division: Fair Work Division Number of paragraphs: 52 Date of last submissions: 23 May 2022 Date of hearing: 4-5 May 2022 Place: Sydney Counsel for the Applicants: Mr A Guy Solicitor for the Applicants: Australian Licenced Aircraft Engineers’ Association Counsel for the Respondent: Mr G Fredericks Solicitor for the Respondent: Norton White ORDERS
SYG 1512 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: DAVID ROBERT BLOOD
First Applicant
AUSTRALIAN LICENCED AIRCRAFT ENGINEERS ASSOCIATION
Second Applicant
AND: KAREELA AVIATION PTY LTD ACN 001 693 812
Respondent
ORDER MADE BY:
JUDGE CAMERON
DATE OF ORDER:
2 JUNE 2022
THE COURT ORDERS THAT:
1.The application be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The first applicant, Mr Blood, was employed by the respondent, Kareela Aviation Pty Ltd (“Kareela Aviation”) as a licensed aircraft maintenance engineer (“LAME”) from February 2013 until 16 December 2020 when he was dismissed on the stated grounds of redundancy. His employment was initially governed by the Airline Operations – Ground Staff Award 2010 and then, from 4 May 2020 until dismissal, by the Airline Operations – Ground Staff Award 2020 (“Award”).
At all relevant times, Mr Blood was a member of the second applicant, the Australian Licenced Aircraft Engineers Association (“Association”), which was not consulted in relation to his redundancy notwithstanding that Kareela Aviation knew that Mr Blood was an Association member.
The applicants seek declarations of contraventions affecting each of them individually, financial compensation for Mr Blood and pecuniary penalties payable to each of them in respect of the particular contraventions allegedly relevant to them individually.
PLEADINGS
Statement of Claim
The applicants alleged that on 15 December 2020, Trevor Breed, Kareela Aviation’s managing director, told Mr Blood that he was being made redundant because Kareela Aviation had no work and that on 16 December 2020 Kareela Aviation terminated Mr Blood’s employment. They alleged that at no time on 16 December 2020 was the Association notified or consulted in respect of the redundancy decision.
It was alleged that, at the time of Mr Blood’s dismissal, Kareela Aviation performed the maintenance on the aircraft operated by Trecked Pty Ltd t/as Helitreck (“Trecked”). Seven of those aircraft were helicopters on which Mr Blood was licensed to “perform and/or certify for maintenance”.
The applicants alleged that Kareela Aviation had contravened sub-cls.32.1, 32.2 and 32.4 of the Award by failing to discuss, in advance, with him or the Association its decision to make him redundant, by failing to provide him or the Association with all information relevant to its decision to make him redundant before taking that decision, and by failing to give him and the Association the opportunity to make suggestions that might have avoided the dismissal. The matters that the applicants alleged could have been raised were:
(a)reduction of hours;
(b)use of annual leave;
(c)use of long service leave; and
(d)other matters that might have evolved from the consultation process.
It was alleged that as a result of Kareela Aviation’s contraventions of the Award, and his dismissal, Mr Blood suffered a reduction in income between the dismissal and 5 July 2021, when he started with a new employer.
Defence
Kareela Aviation denied that Mr Breed told Mr Blood on 15 December 2020 that he was being made redundant because Kareela Aviation had no work. It alleged that, instead, Mr Breed told Mr Blood that he was considering “ending Mr Blood’s notice period” because he had verbally assaulted two staff members, causing them significant distress. Kareela Aviation alleged that Mr Breed then also informed Mr Blood that there had been a reduction in available business and that Kareela Aviation no longer required his job to be performed. It was alleged that Mr Breed told Mr Blood that Kareela Aviation was prepared to make him redundant to help his future job prospects and gave him the opportunity to consider those issues overnight.
Kareela Aviation alleged that Mr Blood attended its workplace at 7:30am on 16 December 2020 to attend a meeting about his ongoing employment, during which Mr Blood and Mr Breed agreed that Mr Blood would be made redundant. It alleged that it had not been required to notify or consult with the Association as the applicants alleged.
Kareela Aviation alleged that Mr Blood and it signed an agreement on 16 December 2020 to the effect that Mr Blood’s employment had been terminated because his position had become redundant and that Kareela Aviation was to pay him $2,000 in addition to what he was otherwise entitled to receive.
Kareela Aviation alleged that it is a small business employer within the meaning of s.23 of the Fair Work Act 2009 (Cth) (“FW Act”) and the termination of Mr Blood’s employment complied with the Small Business Fair Dismissal Code.
Statement of Agreed Facts
The parties agreed that from 4 February 2013 to 16 December 2020, Mr Blood had been employed full-time by Kareela Aviation as a B1.3 licensed aircraft maintenance engineer, had been covered by the Award and had not received any written warnings. The parties agreed that Kareela Aviation had, since about May 2018, been aware of Mr Blood’s membership to the Association.
The parties agreed that Kareela Aviation maintains aircraft on behalf of Trecked and that Trecked and Kareela Aviation are associated entities. From 2019 to 2021, Trecked was the registered operator of 7 helicopters and 2 aeroplanes.
The parties agreed that at all relevant times Kareela Aviation employed fewer than 15 employees.
LEGISLATION
Clause 32 of the Award relevantly provides:
32.Consultation about major workplace change
32.1If an employer makes a definite decision to make major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the employer must:
(a)give notice of the changes to all employees who may be affected by them and their representatives (if any);and
(b)discuss with affected employees and their representatives (if any):
(i) the introduction of the changes; and
(ii) their likely effect on employees; and
(iii) measures to avoid or reduce the adverse effects of the changes on employees; and
(c)commence discussions as soon as practicable after a definite decision has been made.
32.2For the purposes of the discussion under clause 32.1(b),the employer must give in writing to the affected employees and their representatives (if any) all relevant information about the changes including:
(a)their nature; and
(b)their expected effect on employees; and
(c)any other matters likely to affect employees.
…
32.4The employer must promptly consider any matters raised by the employees or their representatives about the changes in the course of the discussion under clause 32.1(b).
32.5In clause 32 significant effects, on employees, includes any of the following:
(a)termination of employment; …
…
The Award is a modern award. Section 45 of the FW Act relevantly provides that a person must not contravene a term of a modern award.
APPLICANTS’ EVIDENCE
David Robert Blood
Mr Blood deposed that on 15 December 2020 when he was packing up for the day, Mr Breed approached him and they had the following conversation:
Mr Breed:I’m going to make you redundant.
Mr Blood:I don’t want to be made redundant. How is this fair when you’ve only just employed another engineer?
Mr Breed:I can offer you a redundancy package at the moment.
Mr Blood:I don’t want to be made redundant.
Mr Breed:There is no work at the moment, and I don't need you anymore.
Mr Blood:This is always going to happen. It's the nature of our work. …
…
Mr Breed:Well you are not getting along with the other engineers.
Mr Blood:That's not true.
…
Mr Blood:You have not been treating me the same ever since I got the licence.
Mr Breed: You're not worth it because you can't even diagnose a fault. I watched you and you had no clue.
Mr Blood:Well we will have to disagree on that as I have the qualifications.
Mr Breed: You're not worth it. You don’t even do the electrical inspections.
Mr Blood:I was, and I wanted to, but you told me that I wasn't to do them as you wanted them done by Rotordyne so I stopped doing them. Anyway, it is not fair that you have just employed someone and now you want me to go after I have got all your machines ready for the season, and as usual there is nothing to do now but wait for fires to start as we do every year.
Mr Breed: I don’t think there will be any fires this year.
Mr Blood:Well at least let me find another job and then I will go at least give me that.
Mr Breed: Go home and think about it and tomorrow we will have a meeting.
Mr Blood deposed that on 16 December 2020 he went to Kareela Aviation’s workplace at 7:15am and that just after 7:30am he went to Mr Breed’s office where they then had the following conversation:
Mr Blood:Do you want to have this meeting now?
Mr Breed: Yes.
Mr Blood: Well what are we going to do?
Mr Breed: I want you gone.
Mr Blood: How is that going to go then?
Mr Breed: I will pay you your entitlements and a redundancy package and an extra $2000 dollars.
Mr Blood: Are you going to give me a redundancy based on years worked? I think it's about 12 weeks for 7 years' service.
Mr Breed: You will get what we have agreed on within 7 days.
Mr Blood: Ok.
Mr Breed: Ok, then Friday will be your last day, but you can go now.
…
Mr Breed: I will get Caroline to work out your payout and get you a letter of release within 7 days. You should be able to get work as I know Coulson are hiring and Careflight will need people when they get the 412.
He deposed that about an hour later, whilst packing his tools and equipment, Mr Breed approached and gave him a signed document that recorded the redundancy agreement. They then had the following discussion:
Mr Blood:Where is the redundancy payout? It's not on there as we agreed. You will need to put it on there.
Mr Breed:This is not a legal document just a letter of intent.
Mr Blood:It needs to have the redundancy payout added that we agreed to.
Mr Breed:Ok, I will write it on there. How do you spell it? That will do.
He watched Mr Breed write the words in pen and then initial them.
Mr Blood deposed that he returned to Kareela Aviation on 18 December 2020. He went to see Ms Armstrong, the accounts person, and was given a deed of release which did not include a redundancy payout figure. He went to Mr Breed’s office and they had the following conversation:
Mr Blood:Where are the rest of the figures?
Mr Breed:That’s it.
Mr Blood:What about the redundancy we agreed on?
Mr Breed:There it is, the $2,000.
Mr Blood:That’s not what we agreed on. I was very specific about the redundancy being for years of service.
Mr Breed:In my mind the $2,000 was the redundancy.
Mr Blood:I don’t agree with this. This is not what we agreed.
Mr Blood deposed that he returned the deed unsigned and left Kareela Aviation at around 2:00pm. On the way home he rang Stephen Re at the Association and sought help.
The evidence of Mr Breed and Brett Williams, relevantly summarised later in these reasons, alleged various occasions of misconduct and harassing and vexatious behaviour on the part of Mr Blood. Mr Blood responded to those allegations in an affidavit in reply which denied some conduct, provided his versions of certain conduct and sought to diminish the significance of yet other conduct by characterising it as jocular. It is not necessary to summarise that affidavit’s particulars other than to note that Mr Blood deposed that he had been justified in recording employees’ absences on a calendar on display because he had been the hangar foreman and “required to manage the hangar staff”.
Stephen Re
Mr Re deposed that he had not been contacted by Kareela Aviation or a representative of Kareela Aviation about the decision to make Mr Blood redundant. He also deposed that he could not find any record in the Association’s membership system logs relating to Kareela Aviation and no other representative from the Association had been contacted.
RESPONDENT’S EVIDENCE
Trevor Breed
Mr Breed deposed that he is the sole director and chief executive officer of Kareela Aviation and is the decision-maker for hiring and firing employees at Kareela Aviation.
Mr Blood’s workplace conduct issues
Mr Breed deposed that he had been made aware of a number of issues regarding Mr Blood’s conduct at work and his interactions with other employees. These issues included:
(a)contaminating another employee’s protein powder with baby formula;
(b)marking on a calendar displayed in the workplace the days on which individual members of staff were absent from work for legitimate reasons;
(c)numerous verbal altercations and arguments with other staff in which Mr Blood was aggressive and used demeaning/insulting language to address staff. On one of those occasions he had caused a female staff member to cry and he laughed about it afterwards;
(d)a notable incident of aggressive behaviour on 29 March 2018 after which Mr Breed directed Mr Blood to take 2 weeks of leave in order to “calm down”;
(e)showing disrespect to Mr Williams, the maintenance co-ordinator, by using his mobile phone during a staff meeting when Mr Williams was speaking about minimising workplace distraction from mobile phones;
(f)refusing Mr Williams’s request to tidy the hanger in preparation for a CASA audit;
(g)refusing to sign off on work which he had performed or on which he was licensed to sign off, saying that a contractor should be brought in to do it;
(h)harassing Mr Williams over his alleged use of a home irrigation system during water restrictions;
(i)declining to assist other staff who were struggling to install main rotor blades onto an aircraft on the basis that “they need to learn a lesson”;
(j)banning Mr Williams from the hangar, saying that he was a “failed engineer”;
(k)being told by two employees that Mr Blood had been a contributing reason for their resignations; and
(l)describing the other LAME and an apprentice engineer as “dumb and dumber”.
Mr Breed said that he was the chief engineer; that Mr Williams was the maintenance co-ordinator, organising and delegating work in the hangar; that Mr Blood was the senior engineer on the floor; and that there was no position of hangar foreman. As a senior engineer Mr Blood was in control of apprentices, as any licensed engineer would be, but that was as far as his authority over employees went.
Mr Breed deposed that towards the end of 2020, Kareela Aviation had a downturn in business because of an unusually low incidence of fires during the 2020/2021 bushfire season which was compounded by the COVID-19 pandemic’s cooling effect on the aviation industry. His evidence was that by December 2020 it was apparent that it was necessary to reduce the number of (full-time) LAMEs employed by the company from 2 to 1.
Mr Breed deposed that by this time he had decided that he wanted to dismiss Mr Blood because of his attitude and conduct towards other employees and told the Court that he had decided, before speaking to him on 15 December 2020, that Mr Blood was to be dismissed.Mr Breed said that he would have terminated Mr Blood’s employment even if there had not also been a need for a redundancy at that time but, as he needed to make a LAME redundant, he thought that a redundancy would be better for Mr Blood than terminating him for misconduct.
Mr Breed said that, at the time he was dismissed, Mr Blood was the only staff member who was licensed to certify for engine maintenance on Trecked’s UH-1H helicopter and for the electrical and instrument maintenance on Trecked’s six BK117 helicopters, the predominant aircraft in its fleet. However, Mr Breed said that Mr Blood had only the bare minimum of experience in BK 117 electrical work and his time was better spent doing its mechanical work. Mr Breed said that the BK116’s electrical work needed years of experience, which is what the engineers at Rotordyne, whom Kareela Aviation used, had.
15 December 2020 – Discussion raising matters of termination or redundancy
Mr Breed deposed that he understood from his conversations between October and December 2020 with employees of Coulson, Careflight and Toll, that Mr Blood had been looking for other work. He was told that Mr Blood had unsuccessfully applied for jobs with those companies.
Mr Breed deposed on 15 December 2020 he had a conversation with Mr Blood to the following effect:
Mr Breed:Dave I need to talk to you. Would you like to take a redundancy?
Mr Blood:I don’t want to take a redundancy
Mr Breed:There’s not enough work at the moment. There have been no bushfires and you can see there is not enough work.
Mr Blood:This is always going to happen. It’s the nature of our work. I can’t be out of work now. My wife has been laid off and things will be hard for us if we are both out of work.
Mr Breed:I know you have been looking around for other work.
Mr Blood:No I haven’t.
Mr Breed:People have told me that you have been applying for other jobs.
Mr Blood:No, that’s not true.
Mr Breed:You need to think about taking a redundancy. You will get your long service leave and holiday pay. I have to tell you that I’ve also been considering whether or not we have to terminate you because you can’t get along with the other engineers. I know that you called Peter and Aidan ‘Dumb and Dumber’ yesterday.
Mr Blood:That’s not true.
Mr Breed:That is not what I have been told, and I was also told that you are the reason that Jimmy and Macca left.
Mr Blood:That’s not true. I don’t believe that as Jimmy and I worked well together and we still talk. He left because he was after a job at a bigger company. It had nothing to do with me.
Mr Breed:Well that is what he told me.
Mr Blood:I don’t believe that.
Mr Breed:I don’t think there will be any fires this year. We do not have enough work and, at the same time, your behaviour would be a ground for letting you go. When you took 2 weeks off you promised that your behaviour would change, and it hasn’t. Now what has happened to the business means your position is redundant anyhow. I can offer you a redundancy, which is far better for you than having to look at termination. I want you to go home and have a think about this and tomorrow we will have a meeting.
Mr Blood:Ok.
16 December 2020 - Opportunity for Mr Blood to put matters to Kareela
Mr Breed deposed that a further conversation with Mr Blood took place on 16 December 2020 in which they discussed a number of topics, including the decline in business, other work Mr Blood could potentially carry out in the company and the offer of redundancy. Mr Breed’s evidence was Mr Blood raised the matter of his electrical licence, for which he received a pay rise of approximately $10,000 p.a. in 2019, and said the following:
Mr Blood:This is about the pay rise you gave me for the electrical licence. You want to get rid of me because you have to pay me more money.
Mr Breed: No, that has nothing to do with it.
Mr Breed’s evidence was that despite Mr Blood’s licence, Kareela continued to outsource work requiring an electrical licence to Rotordyne Pty Ltd because Mr Blood either did not want to do such work or had insufficient experience to carry it out. Their conversation continued:
Mr Blood:Why do you not let me do the electrical work which you send to Rotordyne?
Mr Breed:I have watched you and I do not think that you have got the experience to do electrical work for Kareela. You need experience to be able to do trouble shooting and I don’t think you have that experience. And anyway you have told me you don’t want to do that work.
…
Mr Breed:Don’t you remember that I had to stop you from doing some work because you had missed an electrical problem?
…
Mr Breed:We need to have the work done by Rotordyne, and giving you electrical work is not a solution as you not experienced enough. This does not affect the redundancy and there is another problem. I have lost employees because of your attitude.
Mr Blood:That’s not true. The only thing I said which upset a few of the guys was telling them I was going to become a shareholder.
Mr Breed:Several of the guys who left told me that they left because of how you treated them.
…
Mr Breed:We do not have enough work and I am offering you a redundancy. The alternative is that we think about termination because of your attitude to the other employees.
Mr Blood:If I take it, what will I get paid?
Mr Breed:You can finish up on Friday. You will get paid up until then, with long service leave and holiday pay as well as pay in lieu of notice and if you accept the redundancy I’ll pay an extra $2,000.
…
Mr Blood:Ok I accept.
Mr Breed:Ok, then Friday will be your last day, but you can go now.
…
Mr Breed:I will get Caroline to work out your payout and get you a letter of release within 7 days. You should be able to get work as I know Coulson are hiring and Care flight will need people when they get the 412.
Mr Breed deposed that a short time later he prepared and gave Mr Blood a written record of the agreement they had reached during their meeting. Mr Breed’s evidence was that they discussed this document as follows:
Mr Blood:This does not say that it is a redundancy payment. You will need to write it on there.
Mr Breed:There it is, the $2,000. This is not a legal document just a letter of intent.
Mr Blood:It needs to say that this is a redundancy payment like we agreed to.
Mr Breed:Ok I will write it on there. How do you spell it? …
Mr Breed deposed that at Mr Blood’s insistence he wrote the words “and redundancy” on the record of agreement, which they then signed. Mr Breed deposed that he understood that the “redundancy” to which Mr Blood referred was the $2,000.
Mr Breed deposed that as he had known that Kareela Aviation was a small business and not required to make redundancy payments, the offer to Mr Blood of a redundancy payment of $2,000 in addition to his entitlements was to encourage him to agree to redundancy. Mr Breed denied offering to pay Mr Blood his “entitlements and a redundancy package and an extra $2000 dollars” and to having at any time promised Mr Blood a redundancy payment other than the $2,000.
Mr Breed’s evidence was that Mr Blood’s redundancy was the only action that Kareela Aviation took as a result of the downturn in business and that there was no restructure or reorganization of operations at Kareela Aviation at the time Mr Blood was made redundant or subsequently. Moreover, since Mr Blood left no additional LAMEs had been employed by Kareela Aviation.
Brett Williams
Mr Williams was employed by Kareela Aviation as a maintenance co-ordinator. He deposed that from 2016 he had experienced issues with Mr Blood’s conduct in the workplace. Mr Williams’s evidence was that he recalled the following workplace incidents involving Mr Blood:
(a)in 2016 Mr Blood told Mr Williams that he had been putting baby formula in the latter’s protein powder, which made Mr Williams feel uncomfortable and humiliated in front of other employees;
(b)in 2017 he was told that Mr Blood had upset staff by recording on a calendar displayed in the workshop the dates when individuals were absent from work because, he said, they were taking too much time off. Mr Blood refused Mr Williams’s request that he stop marking the calendar;
(c)in about March 2018 Mr Blood refused to sign off on work which he had already undertaken on an engine, saying he was not licensed to. However, he was in fact licensed and did later sign off on the work after being challenged by Mr Williams, who had spent time looking unsuccessfully for someone else to do it, about his claim not to hold the relevant licence;
(d)in March 2018 he was told that Mr Blood had called another employee, James Pitman a “dog” and had threatened to fight him. Mr Blood then took 2 weeks of leave to, he was told, calm down;
(e)in June 2018 he was told that Mr Blood had “cornered” a female staff member in her office and shouted at her, causing her to cry and to express an intention to resign as she could not work with Mr Blood. The next day he observed Mr Blood laughing and saying:
It’s so funny that I made Tamara cry;
(f)in March 2019 Mr Williams felt undermined by Mr Blood in a staff meeting regarding limiting distractions from mobile phones as Mr Blood made “snarky comments” and began scrolling on his phone;
(g)in April 2019 Mr Blood locked Mr Williams out of the hanger, which prevented him from starting work on time;
(h)on a number of occasions Mr Blood refused to sign off on work for which he was licensed, requiring it to be redone by a contractor;
(i)on 5 September 2019, Mr Blood had assembled and fitted an emergency locator transmitter to a helicopter, including fitting the cowling which completely covered the work done, but would not sign off on the work, saying:
Can you get Rotordyne to sign off on the ELT as I can't sign for it.
Mr Williams deposed that certifying the proper completion of maintenance work involved reviewing every step of the work and so, for Rotordyne to make the certification, it would have been necessary to disassemble the emergency locator transmitter almost completely and reinstall it. Mr Williams deposed that the following exchange occurred:
Mr Williams: Are you kidding, why did you fit it if you can't sign for it, they will have to take it out and redo it.
Mr Blood: I'm not signing for it;
(j)in January 2020 Mr Blood abused Mr Williams in words to the effect of:
You are banned from the hangar. You are a failed engineer and I don’t have any respect for you. Go and sit in your air-conditioned office. ... Your shoes are non-compliant;
(k)in December 2020 Mr Williams was present during a conversation between Mr Breed and another employee, Macaulay Allen, during which Mr Allen resigned, saying that Mr Blood had been a factor in his decision to leave; and
(l)on 15 December 2020 he was told that Mr Blood had addressed the other LAME and an apprentice engineer as “Dumb and Dumber”.
Mr Williams reported various of those incidents to Mr Breed.
CONSIDERATION
I was impressed by Mr Breed and Mr Williams, who both gave their evidence in a straightforward way. Further, Mr Breed’s openness to conceding a mistake in his recollection when confronted with contradictory documentary evidence gave me confidence in the genuineness of his testimony, while Mr Williams’s patent frustration when recalling having been locked out of the hangar, or at least having the most convenient access denied to him for no apparent good reason, lent his evidence considerable credibility. I did not find Mr Blood’s demeanour equally persuasive, not least because of his unwillingness to admit that he did anything wrong notwithstanding that his own affidavit evidence indicated that he was not always a helpful or agreeable colleague or employee. The evidence also persuaded me that he was not hangar foreman as he claimed to be, and he conceded that he was not responsible for managing absences, which meant that he had no business recording staff absences on a calendar on display which, in such circumstances, should be recognised as simple harassment reflecting poorly on him. Further, to describe behaviour which tended to mock or belittle others, specifically the baby formula and “Dumb and Dumber” incidents, as jokes as Mr Blood did in his affidavit in reply, is either disingenuous or demonstrative of considerable insensitivity and lack of insight. Whatever the case, I have less confidence in the accuracy of Mr Blood’s recollection and understanding of events than I do in the accuracy of the recollection and understanding of Mr Breed and Mr Williams. Where the latters’ accounts differ from Mr Blood’s, I prefer their evidence.
However, questions of credit have only limited relevance in this matter, which turns on whether Kareela Aviation had been obliged by cl.32 of the Award to give notice of its decision to dismiss Mr Blood to, and to hold discussions in relation to it with, him and the Association. That obligation is engaged if an employer:
(a)makes a definite decision;
(b)to make major changes in production, program, organisation, structure or technology; and
(c)that are likely to have significant effects on employees.
Mr Breed had decided, before speaking to Mr Blood on 15 December 2020, that Mr Blood was to be dismissed. Clause 32.5(a) of the Award states that termination of employment is a “significant effect”. The question therefore becomes whether the definite decision to terminate Mr Blood’s employment involved “major changes” in production, program, organisation, structure or technology at Kareela Aviation and it is only to that issue that questions of credit will be relevant.
In Australian Nursing and Midwifery Federation v Bupa Aged Care Pty Ltd [2017] FCA 1246, O’Callaghan J had regard when considering the operation of an award provision similar to cl.32 of the Award not only to the number of staff being directly affected by a decision to make positions redundant, but also the possible impact of the implementation of the decision “more broadly”. In doing so, his Honour referred to the decision of the Full Court of the Federal Court in Port Kembla Coal Terminal Ltd v Construction, Forestry, Mining and Energy Union (2016) 248 FCR 18 where it was held that determination of whether a decision involved a “major change” involved consideration of:
… facts which went beyond, although they may include, the facts of the redundancies. (per Jessup J at 72 [187]
Examples of potentially relevant considerations were provided in the reasons for judgment of White J at 143 [499].
It is to be noted that the industrial instruments considered in the Bupa Aged Care case and the Port Kembla Coal Terminal case both spoke of “a major change” whereas the Award speaks of “major changes”. What has to be shown in the present case would seem therefore to be something greater in scope than had to be proved in the Bupa Aged Care and the Port Kembla Coal Terminal cases. However, given the evidence that was adduced in this matter, it is not necessary to apply a test more demanding than the one applied in those cases.
Recognising that this is a matter in which civil penalties are sought, I have had regard to s.140(2) of the Evidence Act 1995 (Cth), and to the authorities that inform it, and find that the evidence in the present case does not support a conclusion that there were major changes, or a major change, in production, program, organisation, structure or technology at Kareela Aviation by reason of Mr Blood’s dismissal. It is correct, as Mr Blood submitted, that his dismissal amounted to the loss of half the company’s complement of full-time LAMEs, but his departure was not shown to have had any significance for the operation of the business generally or the way it undertook the maintenance of aircraft in particular.
Because it was confirmed by Mr Breed, I accept Mr Blood’s evidence that he was the only LAME at Kareela Aviation who could certify for electrical and instrument maintenance on the BK117 aircraft and mechanical maintenance on the UH-1H aircraft. On the other hand, I also accept Mr Breed’s evidence that Mr Blood was not, contrary to his assertions, the only LAME at Kareela Aviation who could certify for electrical maintenance on the UH-1H aircraft, for electrical and instrument maintenance on the Squirrel AS-350 aircraft, for electrical and instrument maintenance on the Bell Long Ranger aircraft or for electrical and instrument maintenance on the Bell Jet Ranger aircraft. Although it must be accepted that Mr Blood’s departure caused certain skills gaps at Kareela Aviation, the evidence indicates that the company used the services of contractors to fill such gaps in its capacity and I infer that, to the extent that Mr Blood’s departure created any new skill gaps, that is how they were addressed.
As it has not been demonstrated that the decision to dismiss Mr Blood involved the making of any major change in production, program, organisation, structure or technology at Kareela Aviation, the application must be dismissed.
However, before concluding, reference should be made to the argument that, had the finding about major changes been favourable to the applicants, consultation as required by the Award had been deficient in Mr Blood’s case and absent in the Association’s case. The first point to be noted is that the Award does not, in fact, require “consultation”. That word is a portmanteau found in the title to the clause and only directs attention to the clause’s particular requirements concerning discussions, provision of information and consideration of submissions. The relevant requirements were quoted earlier in these reasons.
Consideration of the consultation requirements of cl.32 of the Award reveals them to be more concerned with the working out of decisions to make major changes than with the situation of a single redundancy, such that many of the Award’s particular requirements are irrelevant to Mr Blood’s circumstances. That tends to indicate that Mr Blood’s dismissal was not an event which engaged cl.32.
However, to the extent that parts of cl.32 may have been relevant to Mr Blood’s dismissal, it is to be noted that he was told of the decision and of the effect that it would have on him, at least in the employment context. His retort that he did not want to be dismissed was noted and the terms of the redundancy discussed. He was given the 16 December 2020 document and on 18 December 2020 the draft deed of release. Those documents set out, with differing levels of detail, the decision and its financial particulars. Even assuming that cl.32 had applied to Mr Blood’s dismissal, the clause required no more in his case than was in fact done.
The remaining issue, assuming that cl.32 had applied, is whether the Association should have been involved in the discussions over Mr Blood's dismissal. The clause speaks of the employer involving the employee's "representatives" in consultations.
The Court was taken to Re Consultation clause in modern awards (2013) 238 IR 282, where the Full Bench of the Fair Work Commission relevantly said:
… the relevant [award] term must include a term which "allows for the representation of those employees". The word "allows" is permissive — it does not require an employee to be represented but if they choose to be then the employer is to respect that choice and consult with the employee and their representative. So much is clear from the language of s 145A(1)(b) which allows for the representation of affected employees "for the purposes of that consultation". … at 290 [27]
However, that case involved s.145A of the FW Act which is concerned with changes to rosters and hours of work, not with major workplace change. Further, the term which the commission drew was relevantly in the following terms, which are not identical to cl.2 of the Award:
Consultation about changes to rosters or hours of work
(a)Where an employer proposes to change an employee's regular roster or ordinary hours of work, the employer must consult with the employee or employees affected and their representatives, if any, about the proposed change.
…(at 305 [107])
Even if it is to be accepted that the commission’s decision might apply to the present case, it is to be noted that its discussion did not presuppose that an employee would be taken to be represented by an industrial organization simply by virtue of membership of that organization. I am not persuaded that cl.32 of the Award requires an employer to presume that an employee has a representative absent any indication by the employee that he or she has engaged a representative or has called on his or her union to provide assistance. In that connection, there was no evidence that Mr Blood had, at any point before the afternoon of 18 December 2020, asked the Association, or Mr Re in particular, to represent him in his discussions with Kareela Aviation. Nor was there any evidence that the Association, or any of its officers, held a standing appointment as Mr Blood's industrial representative at Kareela Aviation or as the representative of any other employee or class of employees.
In the circumstances I find that Mr Blood did not have a representative prior to his contact with Mr Re on 18 December 2020, after his employment had been terminated, and so cl.32 of the Award did not operate to require Kareela Aviation to give notice to such a person or organization, as the Association has contended.
CONCLUSION
The application will be dismissed.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 2 June 2022