A Full Federal Court has confirmed the decision of the Federal Magistrates Court in Australian Licensed Aircraft Engineers Association v Qantas Airways Ltd & Anor, a case which considered the operation of the adverse action provisions in the Fair Work Act 2009 (Cth).
Implications for employers
This decision indicates that for the purposes of the adverse action provisions, an employee’s position may be altered to his or her prejudice if the employee is in a group of persons who may be affected by the employer’s actions in a real and substantial way. This is the case even if the facts demonstrate that the employee in question was unlikely to be, and was not in fact, so affected.
The decision also highlights the complexities for an employer in discharging the onus of proof in adverse action proceedings, and the importance of selecting and presenting appropriate evidence to support the employer’s assertions.
The employee, Mr Murray, was a licensed aircraft mechanical engineer (LAME). An enterprise agreement applied to his employment and, among other things, prescribed his pay rates. Mr Murray was posted overseas for a period. Upon his return to Brisbane, he queried whether he had been underpaid whilst overseas, as he had worked longer hours than usual. Mr Murray alleged that a Qantas manager responded in a hostile fashion to his entitlements claim, threatening him with no further overseas postings unless he withdrew it. When his claim for entitlements was refused, he commenced the dispute resolution procedure under the enterprise agreement. The next day, Qantas suspended indefinitely all LAME overseas postings from Brisbane. This suspension was withdrawn shortly after. During this time, Mr Murray also unsuccessfully applied for a promotion.
The Australian Licensed Aircraft Engineers Association (the Union) claimed that Qantas had taken adverse action against Mr Murray, in that it:
- altered his position to his prejudice when suspending LAME overseas postings; and
- the manager had sought coerce him not to exercise his workplace rights.
Decision at first instance
At first instance, the Federal Magistrates Court found that, while there was no evidence of adverse action being taken against Mr Murray in relation to his application for the promotion:
- Mr Murray’s claim, and his instigation of the dispute resolution procedure, was at least part of the reason why Qantas suspended overseas postings. The suspension altered Mr Murray’s position to his prejudice as it meant he had no future opportunity to take an overseas posting. This was the case even though the evidence was that it was highly unlikely Mr Murray would have been considered for overseas postings in the short period during which the suspension actually operated;
- the manager’s threats to reduce the advantages enjoyed by Mr Murray unless he chose not to exercise his workplace right was clearly adverse action; and
- the threat to prevent Mr Murray going on future postings was coercion, in that it was an attempt to bring illegitimate pressure on him to prevent him from further pursuing his claim.
Decision on appeal
Qantas appealed to the Full Federal Court, arguing that the Federal Magistrates Court had been incorrect in his findings that:
- the suspension of overseas postings altered Mr Murray’s position to his prejudice;
- Mr Murray’s claim for payment and his institution of the dispute resolution procedure were relevant to the decision to suspend overseas postings; and
- coercion had taken place.
Qantas argued that the Court had reformulated the Union’s claim and failed to give Qantas an opportunity to address the claim as reformulated, thus denying Qantas procedural fairness. Qantas also argued that the Court had made findings which departed from the Union’s pleaded case and the way Qantas pleaded its case.
The Full Federal Court rejected Qantas’ appeal, holding that:
- even though Mr Murray did not in fact lose the opportunity for an overseas posting as a result of the suspension, at the time the suspension was imposed there was no limit on its length and Mr Murray was therefore prevented from obtaining overseas postings at the end of 2010 or early 2011 as he had previously expected to be able to do. There was an adverse affection of and deterioration in the advantage Mr Murray had enjoyed before the suspension was imposed. Mr Murray’s position was altered to his prejudice in that he was a person affected by the suspension in a real and substantial way;
- nothing in the evidence suggested that Mr Murray’s exercise of his workplace right to claim for his entitlements was not one of the reasons for suspending overseas postings (Qantas did not press this allegation during the appeal);
- while the Federal Magistrates Court’s decisions regarding amendment of the pleadings were “questionable in some respects”, its findings on coercion, and reliance on the evidence and pleadings to make them, were open to it. There was no denial of procedural fairness; and
- there was no substance to the argument that the Court had made findings which departed from the Union’s pleaded case and the way Qantas pleaded its case.
Accordingly, the decision at first instance was upheld.
Qantas Airways Limited v ALAEA  FCAFC 63