McLennan v Surveillance Australia Pty Ltd

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FEDERAL COURT OF AUSTRALIA

McLennan v Surveillance Australia Pty Ltd [2005] FCAFC 46

WORKPLACE RELATIONS – Australian workplace agreement – Variation agreement – Employment Advocate – Whether an agreement entered into between an employer and an employee which effectively varies an Australian workplace agreement is unenforceable by the employer if the variation agreement has not been submitted to the Employment Advocate and approved in accordance with the Workplace Relations Act 1996 (Cth)

Workplace Relations Act 1996 (Cth), Parts VID, VIE

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 cited
Ansett Transport Industries (Operations) Pty Ltd v Wardley (1997) 142 CLR 237 cited
Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Air Pilots (1989) 95 ALR 211 cited
Byrne v Australian Airlines Ltd (1995) 185 CLR 410 cited
Fitzgerald v F J Leonhardt Pty Ltd (1997) 189 CLR 215 cited
Metal Trades Industry Association v Amalgamated Metal Workers’ and Shipwrights’ Union (1983) 152 CLR 632 cited
Nelson v Nelson (1995) 184 CLR 538 cited
Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd (1978) 138 CLR 411 considered

BRIDIE MCLENNAN v SURVEILLANCE AUSTRALIA PTY LTD
SAD 134 OF 2004

BLACK CJ, MOORE AND LANDER JJ
ADELAIDE
24 MARCH 2005


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

SAD 134 OF 2004

ON APPEAL FROM THE MAGISTRATES COURT OF SOUTH AUSTRALIA

BETWEEN:

BRIDIE MCLENNAN
APPELLANT

AND:

SURVEILLANCE AUSTRALIA PTY LTD
RESPONDENT

JUDGES:

BLACK CJ, MOORE AND LANDER JJ

DATE OF ORDER:

24 MARCH 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal be allowed.

2.        The orders of the Magistrate of 20 May 2004 and 2 July 2004 be set aside.

3.        No order as to costs on the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

SAD 134 OF 2004

ON APPEAL FROM THE MAGISTRATES COURT OF SOUTH AUSTRALIA

BETWEEN:

BRIDIE MCLENNAN
APPELLANT

AND:

SURVEILLANCE AUSTRALIA PTY LTD
RESPONDENT

JUDGES:

BLACK CJ,  MOORE AND LANDER JJ

DATE:

24 MARCH 2005

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

BLACK CJ AND MOORE J

Introduction

  1. This is an appeal under s 422 of the Workplace Relations Act 1996 (Cth) ("the Act") from two judgments of the Magistrates Court of South Australia. The judgments were given in proceedings brought by the respondent, Surveillance Australia Pty Ltd, against the appellant claiming money due under a bond agreement concerning pilot training undertaken by the appellant. The appellant was employed by the respondent as a pilot when the training took place. In the first judgment of 20 May 2004, the learned Magistrate ordered the appellant to pay the respondent $16 336.86 due under the bond agreement. In the second judgment of 2 July 2004, the appellant was ordered to pay the respondent's costs in the proceedings.

  2. As will be seen, the central issue in this appeal is whether an agreement entered into between an…

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Details
Case
[2005] FCAFC 46
Decision Date

CaseChat Overview and Summary

In the case of McLennan v Surveillance Australia Pty Ltd, the primary dispute revolved around the enforceability of an agreement between an employer and an employee that effectively varied an Australian Workplace Agreement (AWA) without submitting the variation to the Employment Advocate for approval. This case was heard in the court of appeal, where the main legal issue was whether such a variation agreement is unenforceable if it has not been approved in the prescribed manner under the Workplace Relations Act 1996 (Cth). The court needed to determine if the employer could enforce the variation in the absence of the required approval from the Employment Advocate or the Australian Industrial Relations Commission.

The court addressed the issue by examining the statutory framework and the specific provisions of the Act concerning the variation of AWAs. It noted that while the Act provides for the variation of AWAs, the respondent had not sought to use the provisions that would have required approval by the Employment Advocate. Instead, the court focused on the general enforceability of the agreement under the Act. The court concluded that the lack of approval did not render the variation agreement unenforceable per se, but it highlighted the importance of following the statutory process for variations to ensure compliance and proper oversight.

Ultimately, the court allowed the appeal and set aside the orders of the Magistrate, primarily due to the agreement on both sides that the costs order should not have been made under the terms of section 347 of the Act. The court adopted the findings and reasons of the draft reasons provided by Black CJ and Moore J, agreeing with their interpretation and the proposed orders. Consequently, no order regarding costs was made in the appeal. The case underscores the importance of adhering to the statutory procedures for varying AWAs to maintain the integrity and enforceability of workplace agreements within the regulatory framework.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders of the Magistrate of 20 May 2004 and 2 July 2004 be set aside.

3. No order as to costs on the appeal.

Background

Background to the litigation

As will be seen, the central issue in this appeal is whether an agreement entered into between an employer and an employee which effectively varies an Australian workplace agreement (“an AWA”) is unenforceable by the employer if the variation agreement has not been submitted to the Employment Advocate and approved by him or by the Australian Industrial Relations Commission in accordance with the provisions of the Act. The Act makes specific provision for the variation of an AWA but it was not sought to enliven those provisions in the present case.Background Generally the facts before the Magistrate were not in issue. The following summary is drawn from the findings of fact made by the Magistrate or from uncontentious evidence referred to in the appeal. The appellant commenced employment with the respondent on 24 September 2001 as a pilot of a Britain Norman Islander aircraft operating from Horne Island. The appellant and the respondent entered into an AWA called the Pilots and Observers Australian Workplace Agreement ("the appellant's AWA"). The appellant signed the AWA on 18 September 2001 and it was signed on behalf of the respondent on 10 October 2001. The Employment Advocate issued a notice approving the appellant's AWA on 8 November 2001. On 22 November 2001 the respondent called for expressions of interest from its employees in being promoted to the position of First Officer on a DHC-8 ("Dash 8") aircraft based in Broome or Darwin. This was done by e-mail which read (omitting e-mail addresses):Date: Thu, 22 Nov 2001 10:22:31 +1000To: From: Rudy Darvill Subject: Expressions of Interest for Dash 8 Pilot PositionsCc: Gents, please ensure this e-mail is passed to all SAPL pilots.Expressions of interest from NAS pilots are requested for the following positions: * Dash 8 Captain position based in Cairns. * Dash 8 F0 positions with anticipated basings at Broome or Darwin. The F0 positions are contingent upon SAPL being requested to increase the ROE to meet possible, additional tasking demands from Coastwatch (Task 7).All pilots who previously submitted EOIs for the above or similar positions are requested to re-apply.Cheers,RDRudy DarvillAssistant Chief PilotSurveillance Australia On 24 November 2001, the appellant expressed an interest. She did so by e-mail in the following terms (omitting e-mail addresses):Date: Sat, 24 Nov 2001 19:16:26 +1000To: From: Surveillance Australia Horn Island <Subject: E01 - Dash 8 F0To RudyI would like to express my interest for the Dash 8 F0 positions becoming available in Broome and Darwin.I believe my past and current performance as a Islander Captain within the company have been to a high standard aswell as assisting the company in other areas.In the past 15 months I have taken on various other roles within the company including:Assistant Manager of Flight Training Standards while Anthony Davis was on leave, Flight Safety Officer and Occ. Health and Safety Officer whilst based in Darwin, I have written a guide on the use of the GPS in Islander aircraft in a Surveillance role, which is now issued to new trainees, and my latest role is becoming a Supervisory Pilot, currently conducting line training in Horn Island.I would be happy to be based in either Broome or Darwin ( NB: I am being transferred to Broome late December - early January as an Islander/Shrike Captain ) , and believe I have the qualities and strengths required to excel in the position of Dash 8 FO.Thank you for your consideration,Yours SincerelyBridie McLennanThe appellant did not then have the necessary qualifications to operate a Dash 8 aircraft.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BLACK CJ
The appellant challenged the costs order of the Magistrate in this appeal. Initially the respondent sought to support the costs order. Ultimately, however, the respondent accepted that the order should not have been made having regard to the terms of s 347 of the Act and authorities concerning its construction and operation. Accordingly it was agreed that the costs order should be set aside.Conclusion For the preceding reasons, the appeal should be allowed and the orders of the Magistrate of 20 May 2004 and 2 July 2004, set aside. Because of s 347, no order as to costs should be made in the appeal. I have had the advantage of reading the draft reasons of Black CJ and Moore J. I adopt their statement of the facts. I agree in the result which their Honours have arrived. I agree with the orders which they propose. Section 83BA of the Workplace Relations Act 1996 (Cth) (the Act) provides for an Employment Advocate. Relevantly, for the purpose of this appeal, the Employment Advocate provides advice to employers and employees in connection with Australian Workplace Agreements (AWAs) about the relevant award and statutory entitlements, and about the relevant provisions of the Act. The Employment Advocate performs functions under Part VID including functions relating to the filing and approval of AWA and ancillary documents; and investigating alleged breaches of AWAs, alleged contraventions of Part VID and any other complaints relating to AWAs: s 83BB. Part VID of the Act provides for employers and their employees entering into an AWA dealing with matters pertaining to the relationship between an employer and an employee: s 170VF. An AWA, which has been approved in accordance with the Act, operates to the exclusion of any award that would otherwise apply to the employee’s employment: s 170VQ. An employer has an obligation to ensure that the AWA includes provisions of the kind referred to in s 170VG of the Act. First, the employer must ensure that the AWA includes provisions relating to discrimination that are prescribed by the regulations under the Act; secondly, that the AWA does not include any provisions that prohibit or restrict disclosure of details of the AWA to another person; and thirdly, that the AWA includes a dispute resolution procedure. Apart from those matters, the Act does not regulate what must or must not be included in an AWA. However, the Act provides that an AWA may be filed with the Employment Advocate who must issue a receipt if satisfied that the filing requirements provided for in s 170VO of the Act have been met: s 170VN. The Employment Advocate must approve an AWA for which a filing receipt has issued if he/she is sure that the AWA passes the no-disadvantage test and is satisfied the AWA meets the additional approval requirements: s 170VPB. Part VIE provides for the no-disadvantage test and s 170XA(1) provides that an agreement will pass ‘the no-disadvantage test if it does not disadvantage employees in relation to their terms and conditions of employment’.

Ratio Decidendi

Legal Principle Established

Established by: BLACK CJ

Full text does not contain this section.