Federal Court Upholds Adverse Action Finding Against Qantas

The full Federal Court has rejected a Qantas challenge to a Federal Magistrates Court decision that it coerced and took adverse action against an aircraft engineer who complained about being underpaid while on an overseas posting.

The full court found that Federal Magistrate Raphael was correct in his findings and rejected the Qantas’ contention that it was denied procedural fairness.

Federal Magistrate Raphael found the Qantas employee, a licensed aircraft engineer and ALAEA member, was subjected to adverse action after returning to his home base of Brisbane from working a six weeks posting at Japan’s Narita International Airport (Narita).

The engineer made a claim for time off in lieu and payment for additional hours worked while at Narita.  Qantas rejected the claim and the engineer sought to commence the dispute resolution clause of the Enterprise Agreement.   One day later, Qantas suspended all overseas postings of Brisbane-based engineers.

The ALAEA took action in response to the suspension and to a subsequent heated phone call between the engineer and a Qantas manager in which the manager allegedly said that future postings would only be granted to engineers who did not make time off in lieu claims.

The full court found that Federal Magistrate Raphael was correct in his findings and that Qantas had not been denied procedural fairness during, or as a result of correspondence after, the case.  The full court decision is significant in clarifying that altering a person’s position to their prejudice is a ‘broad concept’.  Even though there were no fixed future overseas postings, the decision by Qantas meant there were no ‘possible’ postings at all, which was a detriment to the engineer.

The case also considered that the phone conversation with the senior manager demonstrated an attempt to intimidate the engineer and make him withdraw a legitimate complaint.

The full court said Qantas bore the onus “of proving that it did not suspend the overseas posting for a reason which included the reason that [the engineer] had made the claims for payment or invoked the dispute resolution procedure.“  It said that Qantas made “no attempts” during the appeal hearing to demonstrate that Federal Magistrate Raphael’s conclusion was erroneous, “glaringly improbable or contrary to compelling inferences“.

Qantas Airways Limited v Australian Licensed Aircraft Engineers Association [2012] FCAFC 63 (4 May 2012)

Employers – When Can Monies be Deducted from Employee’s Wages?

This is a warning to employers to be careful when deducting monies from an employee’s wages, especially in the absence of any specific provision permitting such action under the applicable industrial instrument, federal or state legislation or the contract of employment.

Generally, in the absence of a specific statutory provision, an employer is prohibited from making any deduction of monies from an employee’s wages without the employee’s specific authorisation.

The Fair Work Act 2009 (Cth) identifies the circumstances when an employer may be able to make deductions from an employee’s wages. Section 324 of the Act provides that an employer may deduct an amount from an amount payable to an employee if:
• the deduction is authorised in writing by the employee and is principally for the employee’s benefit; or
• the deduction is authorised by the employee in accordance with an enterprise agreement; or
• the deduction is authorised by or under a modern award or a Fair Work Australia order; or
• the deduction is authorised by or under a law of the Commonwealth, a state or a territory, or an order of a court.

Further, an authorisation must specify the amount of the deduction, and it may be withdrawn in writing by the employee at any time. Any variation in the amount of the deduction must be authorised in writing by the employee.

Pizza Shop on the Gold Coast – Alleged Underpayment of $20,000 – Fair Work Ombudsman Prosecution

The Office of the Fair Work Ombudsman is prosecuting the operator of a Surfers Paradise pizza shop for allegedly underpaying 27 cooks, kitchen-hands, customer service attendants and delivery drivers almost $20,000.

It is alleged the 27 Mondo Pizza staff were underpaid $19,093 between December 2009 and October 2010.

Many of the workers were from non-English speaking backgrounds and were aged from 20 to 37 while working at the pizza shop.  They were allegedly underpaid minimum hourly wages, overtime and weekend penalties, with one employee allegedly underpaid evening work allowances.

The largest amount owed to an individual employee was allegedly $2,313.

The FWO is seeking penalties to be imposed against the company and its owner and orders for the company to pay back the alleged underpayments to the employees.

The Stated Purpose of a Social Media Policy for your Workpace may be…

The purpose of this policy is to ensure that the company’s employees understand their obligations when using social media, such as Facebook, twitter, blogs, and are informed of the importance of managing the risks associated with such use that may impact on the reputation of the company and/or the safety of its employees and that may result in a breach of the company’s Conduct of Conduct and, policies, procedures or instructions.

This policy is for the mutual protection of the company and its employees and is not intended to prevent, discourage or unduly limit employees’ expression of personal opinion or online activities.

Workplace Investigations assist with Complaints of Sexual Harassment

Sexual harassment is unwanted and unwelcome behaviour of a sexual nature. State and Federal legislation make it unlawful to sexually harass another person in the workplace.

Sexual harassment takes place when a person makes an unwelcome advance, or engages in other unwelcome conduct of a sexual nature in relation to another person in circumstances, where a reasonable observer would have anticipated that the person would be offended, humiliated or intimidated.

Sexual harassment can occur as a result of a single incident or a pattern of behaviour.  It can be committed regardless of whether or not the behaviour concerned was intended to cause offence, humiliation or distress.

Sexual harassment encompasses a broad range of physical, written or verbal behaviour, which may include, but is not limited to, the following:

• Unwelcome physical contact or attempted physical contact, e.g. kissing, touching (some of which may constitute assault);
• Insinuations about an individual’s private life;
• Requests for dates;
• Insults or jokes of a sexual nature;
• Unwelcome sexual advances, suggestions, innuendoes or requests for sexual favours;
• Offensive printed or photographic material; or
• Offensive information transmitted electronically, e.g. via email or the internet.

Unless workplace issues are dealt with quickly, effectively and impartially, the effect upon the organisation may be costly in terms of loss of valuable personnel, time, money and productivity and may adversely affect your organisation’s good reputation.

An independent, external investigator who investigates complaints of sexual harassment and provides well considered findings and recommendations, based on facts, is invaluable to any workplace.  Do not attempt to investigate internally and risk the investigation process being flawed by partiality and inability to maintain confidentialty.

The benefits of an external, independent investigator cannot be overlooked in maintianing workplace harmony, allowing minimal disruption, and providing findings that all parties involved are more likely to accept than if the investigation were conduicted internally.

Please feel free to contact Brooke Pendlebury today to discuss external investigation options.

Accrual of Leave Entitlements and Workers Compensation

The accrual of leave entitlements (such as, personal leave, long service leave, and annual leave), whilst receiving workers compensation payments is a matter which is dealt with by the National Employment Standards (‘NES’) in the Fair Work Act 2009 (Cth) (‘FWAct’).

Section 130 of the FWAct provides that an employee is not entitled to take, or accrue, any leave entitlements during a compensation period when the employee is absent from work because of personal illness or injury for which the employee is receiving compensation under a relevant State’ compensation law, unless that same compensation law permits the accrual, or taking, of leave.

Each States’ compensation law treats the issue of taking and/or accruing of leave slightly differently.  In most cases the States’ legislation is silent on how the matter is to be treated. Let’s consider the following States:

• South Australia – annual leave continues to accrue for the first 12 months of incapacity and for incapacity extending beyond 12 months, that leave is deemed to have been taken and no more accrues.

• Western Australia – workers compensation legislation does not provide for annual or other forms of leave.  Annual leave and long service leave only accrues for the first 15 days of incapacity, but being on compensation leave does not break a period that counts towards long service leave.

• Tasmania - workplace standards advise that it is an industrial relations matter and unless an award or agreement stipulates that annual leave or long service ceases to accrue after a certain period of absence it will continue to accrue.

• Victoria – legislation is silent on the issue of leave accrual and the inference is that entitlements cannot be taken nor do they accrue.

• New South Wales and Queensland - all entitlements, such as leave continue to accrue as long as the contract of employment exists, irrespective of whether workers compensation is being paid.

Section 130 of the FWAct only provides that an employee has no entitlement to take or accrue such leave, however, it is possible that an enterprise agreement (EA) may be reached between an employer and employee to allow the taking or accrual of leave entitlements.  In this regard although the entitlement is not permitted by the FWAct, nevertheless, the FWAct does not act as a bar to an agreement providing such an entitlement for an employee.  You should consider whether your agreement provides for the taking or accrual of such leave.

Finally, in respect of long service leave entitlements, it appears that all of the States’ legislation pertaining to long service leave provides for accrual during a period of absence for injury or sickness.

Fair Work Ombudsman Investigation – Unregistered Apprentice and Underpayment

A teenager, employed as a carpenter, was allegedly underpaid more than $8,000 by a construction company in Queensland, according to a further Fair Work Ombudsman prosecution.

JDAC Pty Ltd (JDAC), the employer and construction company, allegedly paid the full-time carpenter apprentice rates between June 2008 and February 2009, despite the fact that the employee was not formally registered as an apprentice. The employee was aged 18 and 19 years of age at the time.

Apprentice rates may only be paid by an employer to an employee when the employee and employer have formally lodged an apprenticeship contract, and the employee is formally registered as an apprentice.

JDAC allegedly paid the employed carpenter between $7.46 and $7.73 per hour, while he was entitled to be paid in excess of $15 per hour.

The employee lodged a complaint with the Office of the Fair Work Ombudsman and as a result has had part of the alleged underpayment rectified.

An order seeking the repayment of the remaining money owed shall be sought in the Brisbane Magistrates Court in May this year.