FEDERAL COURT OF AUSTRALIA

Australian Licenced Aircraft Engineers Association v Sunstate Airlines (Qld) Pty Ltd [2012] FCA 1222

THE COURT ORDERS THAT:

1.    The application is dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

REASONS FOR JUDGMENT

Background

1    The respondent, Sunstate Airlines (Qld) Pty Ltd (Sunstate), is a subsidiary of Qantas Airways Limited. It is one of a number of companies which carry on a regional air passenger transport business under the business name QantasLink. The others are Eastern Australia Airlines Pty Ltd and Cobham Pty Ltd. On the evidence, even though, with a few exceptions, Sunstate and Eastern Australian Airlines have separate bodies of employees, aspects of their operations, maintenance included, are managed and conducted as a group under the QantasLink name.

2    On the evening of 19 October 2010 (including into the early hours of the following day) at Brisbane Airport a number of Sunstate’s fleet of Dash 8 aircraft were temporarily grounded as a sequel to inspections carried out that evening by various licensed aircraft maintenance engineers in its employ. The grounding was a consequence of the respective, post-aircraft inspection completion by those employees on that evening of a maintenance related form known as a “QL3” and the effect which that then had under aviation law and practice on the ability of Sunstate to operate those aircraft. I detail that effect later in these reasons for judgement.

3    The employees concerned were Messrs Daniel Pengelly, Jonathon Baldock, Gregory Kuhanez, Boyd Etherton, Dario Posavac and James Fuller (collectively, the LAME employees).

4    The events of 19 October 2010 occurred at a time when there were, as between Sunstate on the one hand and the applicant union, the Australian Licenced Aircraft Engineers Association (ALAEA) and its members on the other unresolved industrial issues in relation to the renewal of an industrial agreement which had expired in 2009. Those issues were the subject of proceedings in the federal industrial conciliation and arbitration body known as “Fair Work Australia” (industrial commission).

5    As a sequel to the events on the evening of 19 October 2010, Sunstate came on 26 October 2010 to send to each of the LAME employees a letter making certain allegations (detailed below) against each of them in relation to their respective completion of a QL3 form on that evening. Each letter also directed the employee concerned not to attend work from that date until further notice. Thereafter, Sunstate conducted an investigation into the events of the evening of 19 October 2010. In the result, by respective letters each dated 19 January 2011, Sunstate issued to each of the LAME employees a formal warning in respect of the completion by each of them of a QL3 form on the evening of 19 October 2010 and directed each employee to return to work on a shift other than that particular employee’s hitherto usual shift. Further, on 25 January 2011 Sunstate sent another letter to each of the LAME employees by which it advised each that it would deduct a total of four hours pay from that employee’s next pay.

6    As at 19 October 2010 and at all material times thereafter each of the LAME employees was a member of the ALAEA.

Relief Claimed

7    By its amended application, the ALEA claims the following relief:

1.    A declaration that Sunstate has, by instituting an investigation into the conduct of the LAME employees in which they exercised a workplace right, contravened s 340 of the Fair Work Act 2009 (Cth) (Fair Work Act) by injuring them in their employment or altering their position to their prejudice because they has exercised or had proposed to exercise a workplace right.

2.    A declaration that Sunstate has, by standing down the LAME employees for conduct which amounted to an exercise of a workplace right, contravened s 340 of the Fair Work Act by injuring those employees in their employment, or by altering their position to their prejudice, because they had exercised a workplace right.

3.    A declaration that Sunstate has contravened s 340 of the Fair Work Act by threatening to dismiss the employees, or by threatening to injure them in their employment or by threatening to alter their position to their prejudice, because they had exercised or proposed to exercise a workplace right.

4.    A declaration that Sunstate has contravened s 340 of the Fair work Act by issuing the LAME employees with formal warnings because they had exercised or proposed to exercise a workplace right.

5.    A declaration that Sunstate has contravened s 340 of the Act by altering the employees normal working times and normal supervision because they had exercised or proposed to exercise a workplace right.

6.    A declaration that Sunstate has contravened s 340 of the Act by deducting four (4) hours pay from the LAME employees’ wage because they had exercised or proposed to exercise a workplace right.

7.    An injunction restraining Sunstate from dismissing or otherwise engaging in any disciplinary action against the LAME employees as a result of their conduct the subject of the its investigation referred to in paragraph 1.

8.    The imposition of pecuniary penalties on Sunstate for contravention of s 340 of the Fair Work Act.

9.    An order pursuant to s 546(3) of the Fair Work Act that any penalty imposed on Sunstate be paid to the ALAEA.

8    The “workplace rights” concerned are alleged by the ALAEA to be the duties and obligations arising under reg 51 and reg 251(9) of the Civil Aviation Regulations 1988 (Cth) (CA Regs) made pursuant to the Civil Aviation Act 1988 (Cth) (CAA). Each of these, the latter when read with the relevant operations manual, imposes a reporting obligation on those engaged in the maintenance of an aircraft. I set out below the terms of these provisions and how they are said to constitute a source of “workplace rights” for the purposes of the Fair Work Act.

9    Each of the LAME employees is alleged, in one or more of the following ways to have been “injured” in his employment by Sunstate by reason of his having exercised or proposing to exercise the alleged workplace rights:

(a)    by letter dated 26 October 2010 being directed not, until further notice, to attend to work in the course of an investigation by Sunstate into the events of the evening of 19 October 2010;

(b)    by letter on 19 January 2011 being directed to return to work on a shift other than his normal shift and being given a formal warning;

(c)    by letter dated 25 January 2011, being advised that four (4) hours pay would be deducted from his next pay with the same then being deducted.

10    Sunstate denies that the rights alleged are in law workplace rights in terms of the Fair Work Act and, further or alternatively denies that any of the LAME employees were injured by reason of their having exercised or proposing to exercise any such workplace right.

Summary of conclusions

11    For reasons which follow, the conclusion which I have reached is that these provisions in the CA Regs are neither a “workplace law” nor a “workplace instrument” as defined by the Fair Work Act. Thus, neither could be a source of a “workplace right” for the purposes of that Act. It follows that, even if it were only for this reason alone, the application should be dismissed.

12    Further or alternatively and also for reasons which follow, even if the provisions alleged could be a source of workplace rights, I am not in any event satisfied that Sunstate took adverse action against any of the LAME employees because they had exercised or proposed to exercise that workplace right.

A workplace right?

13    By s 340(1) of the Fair Work Act it is provided:

340    Protection

(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).

14    The meaning of “workplace right” is supplied by s 341 of the Fair Work Act, which materially provides:

341    Meaning of workplace right

Meaning of workplace right

(1)    A person has a workplace right if the person:

(a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or

(b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or

(c) is able to make a complaint or inquiry:

(i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or

(ii) if the person is an employee—in relation to his or her employment.

Meaning of process or proceedings under a workplace law or workplace instrument

(2)    Each of the following is a process or proceedings under a workplace law or workplace instrument:

(a) a conference conducted or hearing held by FWA;

(b) court proceedings under a workplace law or workplace instrument;

(c) protected industrial action;

(d) a protected action ballot;

(e) making, varying or terminating an enterprise agreement;

(f) appointing, or terminating the appointment of, a bargaining representative;

(g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement;

(h) agreeing to cash out paid annual leave or paid personal/carer’s leave;

(i) making a request under Division 4 of Part 2-2 (which deals with requests for flexible working arrangements);

(j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument;

(k) any other process or proceedings under a workplace law or workplace instrument.

15    A “workplace law” is defined by s 12 of the Fair Work Act in this way:

workplace law means:

(a)    this Act; or

(b)    the Fair Work (Registered Organisations) Act 2009; or

(c)    the Independent Contractors Act 2006; or

(d)    any other law of the Commonwealth, a State or a Territory that regulates the relationships between employers and employees (including by dealing with occupational health and safety matters).

Section 12 of that Act also supplies a definition of “workplace instrument”:

“workplace instrument” means an instrument that:

(a)    is made under, or recognised by, a workplace law; and

(b)    concerns the relationships between employers and employees.

16    Central to s 340 having any relevance at all in the circumstances of this case is acceptance of the proposition that reg 51 or reg 251(9) (or both) of the CA Regs is either a “workplace instrument” or, in terms of paragraph (d) of the definition of “workplace law”, a law of the Commonwealth that “regulate the relationships between employers and employees”. If so, the ALAEA’s case is that each of the LAME employees had, in terms of s 341(1)(a) of the Fair Work Act, a role or responsibility under those provisions namely, a role of aircraft defect reporting.

17    Those CA Regs materially provide:

51    Reporting of defects in Australian aircraft — general

(1)    Where a person who, in the course of his or her employment with an employer, is engaged in the maintenance of an Australian aircraft becomes aware of the existence of a defect in the aircraft, the person shall report the defect to his or her employer.

…

(4)    If the holder of the certificate of registration for an Australian aircraft becomes aware of the existence of a defect in the aircraft, he or she must:

(a)    have an investigation made of the defect;

…

215    Operations manual

…

(9)    Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities.

Penalty: 25 penalty units

18    Having regard to the definitions of “workplace instrument” and “workplace law”, further questions which may arise are whether these provisions in the CA Regs either concern relationships between employers and employees (definition of “workplace instrument”) or are a “law of the Commonwealth that regulates the relationships between employers and employees” (definition of “workplace law”)?

19    The subject is not one entirely free from authority.

20    In other, unrelated industrial civil penalty proceedings brought by the ALAEA, Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd (2011) 193 FCR 526 (ALAEA v International Aviation Service), Barker J held that, in its provision for the continued existence of an employment agreement known as an “Individual Transitional Employment Agreement” or “ITEA” made while the Workplace Relations Act 1996 (Cth) (repealed) (Workplace Relations Act) was in force, the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (Transitional Act) was a “workplace law” in terms of s 12 of the Fair Work Act. In reaching that conclusion, Barker J, at [235], found it helpful to look to dictionary definitions and to earlier judicial authority concerning the meaning of the word, “regulate”:

[235]     … In this regard it is useful to note that the verb “regulate” (which is not defined in the WR Act) is defined by the Macquarie Dictionary, 4th Edition, in the following ways:

1.     to control or direct by rule, principle, method, etc.

2.    to adjust to some standard or requirements, as amount, degree, etc: to regulate the temperature

3.    to adjust so as to ensure accuracy of operation: to regulate a watch.

4.    to put in good order: to regulate the digestion.

The Shorter Oxford English Dictionary, 5th Edition, defines “regulate” as:

1.    control, govern, or direct by rule or regulation: subject to guidance or restriction: adapt to circumstances or surroundings. Bring or reduce (a personal group) to order.

2.    alter or control with reference to some standard or purpose; adjust (a clock or other machine) so that the working may be accurate.

[236]    For the purposes of administrative law, courts have contrasted the concept of regulation with that of prohibition. In Country Roads Board v Neale Ads Pty Ltd (1930) 43 CLR 126, at 133, Knox CJ, Starke J and Dixon J noted that the word “regulate” primarily bears a restrictive meaning, which implies the continued existence of the thing to be regulated. By contrast, the power to prohibit an activity totally carries with it an understanding that the activity may be totally prohibited or permitted subject to some form of regulation.

21    Later, at [237], Barker J referred to the Transitional Act as one which gave “legal life” to the employment agreement. That agreement being one which, in his Honour’s view, regulated relations between employers and employees it followed, so his Honour concluded, that the Transitional Act, by preserving its operation and effect, also had that character.

22    In contrast, in Barnett v Territory Insurance Office (2011) 196 FCR 116 (Barnett v TIO) Mansfield J, while not questioning the correctness of the conclusion reached by Barker J in ALAEA v International Aviation Service, held that the term “workplace instrument” did not apply to the contract of employment itself. His Honour observed, at [31] - [32]:

[31]    In my judgment the expression “an instrument made under or recognised by a workplace law …” in the definition of “workplace instrument”, in conjunction with the definition of “workplace law” means an instrument must be given legal significance by reason of a particular workplace law.

[32]    The definition of “workplace law” refers to enactments of a particular character. The specified enactments may give particular legal significance to an instrument or to a role adopted under an instrument. It is the status of the instrument or of the activity under an instrument to which attention is drawn by the particular “workplace law”. The mere fact of the existence of a contract of employment does not enliven the relevant concept of recognition contained within the definition of “workplace instrument”. If it were simply the existence of a contract of employment on which the particular enactment operated, the expression of “made under or recognised by” would have been unnecessary. It would have been easy to have indicated that s 340(1)(a) includes a right under a contract of employment. It is also more consistent with the grouping of “workplace law”, “workplace instrument” and “order made by an industrial body” in s 341(1)(a) that the reference to recognition by a workplace law in the definition “workplace instrument” should refer to an instrument that is given legal effect or legal life by a provision of an enactment. Those three sources of the existence of a “workplace right” may be taken to have a common type of origin, or genus, in either an enactment or some formal process provided for by an enactment. That, too, is consistent with the genus in the “workplace law” definition, as (d) of that definition is confined to enactments as distinct from private contracts. That interpretation also avoids the potentially idiosyncratic outcome that a written contract of employment might contain a term which would give rise to a workplace right (if the argument for the appellant were accepted), whereas an oral contract of employment providing for the same term would not because it could not be an instrument.

23    In neither ALAEA v International Aviation Service nor Barnett v TIO was it necessary for the Court to examine the meaning of the statutory definitions at other than a general level of abstraction. That was because, on any view, the employment agreement under consideration in ALAEA v International Aviation Service regulated relations between employer and employee. It was thus but a small, logically consistent step to characterise the provision of the Transitional Act preserving it as a law of that character. This case is different. As a matter of initial impression, it seems odd to regard either the CAA or the regulations made under that Act, the CA Regs as laws which either “concern” (workplace instrument definition) or “regulate” (workplace law definition) relationships between employers and employees. Yet reg 51 and reg 215(9) of the CA Regs do impose particular duties on employed maintenance personnel.

24    One submission advanced by Sunstate was that the case brought against it required that either the CAA or the CA Regs as a whole be able to be characterised as a “workplace law” or “workplace instrument” in order to be a source of a “workplace right”. I do not accept this. The case as particularised by the ALAEA against Sunstate identified reg 51 and reg 215(9) of the CA Regs as the sources of the “workplace rights”. Each of these regulations has a discrete meaning and effect. If their meaning and effect are such that, considered individually, each falls within the defined terms “workplace law” or “workplace instrument”, I do not see that they lose that status because one would not, reading either the CAA or the CA Regs as a whole characterise either that Act or those regulations as concerning or regulating relations between employers and employees even though these individual provisions had that character. That approach to the construction of the statutory definitions of “workplace instrument” and “workplace law” would be subversive of an evident, beneficial parliamentary purpose in s 340 and the definitions it incorporates of protecting workers from adverse action (as defined) taken as a result of an exercise or a proposed exercise of a workplace right.

25    The ALAEA submitted that the phrase “any law of the Commonwealth” extended to regulations made under a Commonwealth enactment. The union also submitted that, read in context, a “workplace instrument” as defined was not an instrument of a legislative character. Thus, there was no inconsistency between the character of a regulation as a legislative instrument and a construction of the Fair Work Act which would exclude it from falling within the definition of “workplace instrument” but include it within the ambit of the definition of “workplace law”.

26    As with any statutory provision, the definitions of “workplace instrument” and “workplace law” in s 12 of the Fair Work Act must be construed by reference not only to the language employed in those definitions but in context and, in particular, in a way which is consistent with the language and purpose of that Act read as a whole: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69].

27    Approaching the matter in that way, there is merit in the submission of the ALAEA that instruments of a legislative character such as regulations fall outside the definition of “workplace instrument”. Given that paragraph (d) of the definition of “workplace law” refers not only to a law of the Commonwealth but also to a law of a State or Territory, construing “workplace instrument” in this way would indeed as that union submitted, be consistent with the express inclusion, by s 26(2)(g) of the Fair Work Act, of State or Territory instruments of a legislative character in the definition of “State or Territory industrial law” in s 26(2) of that Act. That provision provides a definition for the exclusion effected by s 26(1) of the Fair Work Act of a “State or Territory industrial law” from operation in respect of a “national system employee” or “national system employer”. The intention is that, in those circumstances where it is applicable, that the Fair Work Act supplant inconsistent State or Territory statutes and subordinate legislation, not that it override any State or Territory awards or industrial agreements which may have a transitionally preserved operation. Apart from the “legislative character” qualification of “instrument” in s 26(2)(g) of the Fair Work Act, that Act is replete with examples (s 14, s 247, s 388 and s 431 to name but a few) of the adjectival use of the word “legislative” to delineate whether particular types of written manifestations of a decision are or are not legislative instruments for the purposes of the Legislative Instruments Act 2003 (Cth). This, too, makes it unlikely that, in using “workplace” adjectively in the definition of “workplace instrument”, Parliament intended that it denote an instrument of a legislative character.

28    It necessarily follows from this analysis that, being of a legislative character, neither reg 51 nor reg 215(9) of the CA Regs could, even for this reason alone, be “workplace instruments” as defined.

29    Construing “workplace instrument” in this way would also be consistent with the observations concerning that defined term made by Mansfield J in Barnett v TIO in the passage quoted above. In that case, Mansfield J made the further observation in that passage (at [32]) that the genus in the “workplace law” definition was such that paragraph (d) of that definition “is confined to enactments”. If correct, that observation would also dictate that neither reg 51 nor reg 215(9) of the CA Regs could be a “workplace law”.

30    Paragraphs (a), (b) and (c) of the definition of “workplace law” in s 12 of the Fair Work Act refer to enactments whereas paragraph (d) uses the broader expression, “any other law of the Commonwealth, a State or a Territory”. When Mansfield J made the further observation Barnett v TIO at [32] his Honour did so, as regard to the passage concerned reveals, for the purpose of highlighting why it was that a private contract was not a “workplace law”. It was not necessary in that case for his Honour to consider whether a regulation made under a Commonwealth Act might be a “workplace law”. By reading the definitions of “workplace instrument” and “workplace law” together, Mansfield J had earlier deduced in Barnett v TIO at [31], also quoted above, that a workplace instrument was one “given legal significance” by reason of a particular workplace law. I respectfully agree with this interpretative deduction. It is not subversive of that deduction to construe “workplace law” as extending to subordinate legislation such as regulations. The term “law” is readily capable of extending to regulations made under an enactment. Had Parliament intended to confine the scope of paragraph (d) of the definition of “workplace law” to “enactments” it would have been easy to have used that narrower term. There is no evident statutory purpose served by excluding from coverage of the protection given to a worker by s 340 what would otherwise be a “workplace right” because it is found in a regulation rather than an enactment. In this respect, I respectfully disagree with Mansfield J as to what may be a “workplace law”.

31    For these reasons, it is not fatal to the case which the ALAEA seeks to make against Sunstate that the sources of what it particularises as a workplace right are regulations, not provisions in an enactment.

32    It does not follow from this conclusion that the two particularised CA Regs are a law of the Commonwealth “that regulates the relationships between employers and employees”. It is trite that this descriptive clause must be construed as a whole. Not only must the law “regulate” but there must be an object of regulation of a particular specified kind - “relationships between employers and employees”.

33    A regulation which, like reg 51 or reg 215(9) of the CA Regs, imposes a duty on a person as an incident of undertaking a particular task in the course of employment - “engaged in the maintenance of an Australian aircraft” (reg 51) or as an incident of a particular type of employment - operations personnel of an operator (reg 215(9)) does not regulate the relationship between that person and his employer. Having regard to the dictionary definitions cited by Barker J in ALAEA v International Aviation Service, each of these provisions in the CA Regs might readily be characterised as a provision which “regulates” the conduct of a person to whom it applies but the object of that regulation is not the relationship between that person as an employee and his employer but rather that of air safety by the imposition of particular reporting obligations. Common to the definitions of “workplace instrument” and “workplace law” in s 12 of the Fair Work Act is the object of the relationship between employer and employee. Provisions which do no more than use the status of employer or employee as an incidental touchstone for the imposition of duties serving other ends do not fall within the terms of these definitions.

34    Insofar as there may, because of this feature of the definitions, otherwise be room for debate as to whether provisions in statutes or regulations dealing with occupational health and safety matters had as their object the relationship between employer and employee, that debate is quelled by the express inclusion of such provisions in the definition of “workplace law”. That express inclusion also sets the limit of the additional reach of the definition.

35    These conclusions, which take up and approve a submission made on behalf of Sunstate, are tolerably clear from a consideration of the language of the definitions themselves. For completeness, I record that I have consulted the relevant part (paragraphs 61 and 62) of the Explanatory Memorandum circulated by the then Minister when introducing the Bill which became the Fair Work Act to see whether it offered any assistance. As is not uncommon, it did not, doing little more than paraphrasing the text of the proposed definitions.

36    I also add that it is possible, by a survey of earlier Commonwealth industrial legislation, to locate provisions which served broadly similar ends to s 340 of the Fair Work Act. The designation, by s 793 of the Workplace Relations Act, of particular conduct as conduct taken for a “prohibited reason” and the related penalty regime in respect of conduct taken for such a reason was one such example. Earlier yet were the prohibitions in the Industrial Relations Act 1988 (Cth) (repealed) (s 324) and before that the Conciliation and Arbitration Act 1904 (Cth) (repealed) (s 5) (Conciliation and Arbitration Act) against an employer “injuring” an employee in his employment because that employee is entitled to the benefit of an industrial agreement or award. To construe the definition of “workplace law” in a way which embraced reg 51 and reg 215(9) of the CA Regs would certainly have taken the ambit of the protection afforded by s 340 of the Fair Work Act well beyond that in broad historic analogues. There is nothing in either the Ministerial Second Reading Speech or in the Explanatory Memorandum which would suggest any such expansive intention. Nonetheless, if, in context, the language of the definition of “workplace law” admitted of such coverage it would be no answer that it was without precedent.

37    It follows that neither reg 51 nor reg 215(9) of the CA Regs is a “workplace law” as defined. The necessary consequence is that neither can be a source of a “workplace right”. For these reasons I have concluded that, because there is no “workplace right” entailed the result must in any event be that the application must be dismissed.

Adverse action?

38    The conclusion as to the meaning of the definitions of “workplace instrument” and “workplace law” means that it is strictly unnecessary to determine whether the ALAEA has otherwise proved that Sunstate took “adverse action” against the LAME employees.

39    A perception that the case might be determined on a point of law derived from what was the true construction of these definitions moved Sunstate at an earlier stage to seek the separate determination of this point and a related summary dismissal of the proceeding. That was not a course which commended itself to the then docket judge. Particularly where its resolution, one way or the other, will not decide a case, the determination of such a point in isolation from the resolution of a related factual controversy can be fraught with the risk of elongating rather than truncating the final resolution of a matter.

40    Because the question was the subject of full evidence and against the contingency that the conclusion to which I have come in relation to the construction of the statutory definitions may be in error provides one reason why it is desirable, on the assumption that reg 51 and reg 215(9) of the CA Regs can be a source of workplace rights, to make findings in relation to the factual elements of the alleged contraventions. Another reason, perhaps the more important, given the industrial context in which this case arose, is that it may do less than justice to the parties and for their ongoing relationship for them not to have the benefit of findings of fact concerning these allegations.

41    Section 340 of the Fair Work Act is one of a number of what are described in the “guide” (s 334) to Pt 3.1 of Ch 3 of that Act as “general protections”. These general protections are intended to protect workers from “adverse action”, as defined by s 342. In each instance, there must be a causal relationship between an intended taking of adverse action and the exercise or proposed exercise of a right, protected activity or holding of a particular status or characteristic.

42    The general protections for which Pt 3.1 provides are designated as “civil remedy provisions” by s 539(1) of the Fair Work Act. Proof of the contravention of such a provision attracts a maximum pecuniary penalty of 60 penalty units: s 539(2). A proceeding in respect of an alleged contravention of a civil remedy provision is subject to the rules of evidence and procedure applicable to civil matters: s 551 Fair Work Act. As to the applicable onus and standard of proof in such a proceeding, in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 188 FCR 221 at [13] I observed:

13    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.”

43    Sections 360 and 361 of the Fair Work Act, referred to in the passage quoted, provide:

360    Multiple reasons for action

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

361    Reason for action to be presumed unless proved otherwise

(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.

44    The effect of s 360 is self evident from its terms.

45    As to s 361 of the Fair Work Act, definitive guidance as to its meaning and effect is offered in the recent judgement of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 86 ALJR 1044 (Bendigo Institute Case) and in observations made by Gibbs J and Mason J (as they each then were) in General Motors-Holden's Pty Ltd v Bowling (1976) 136 CLR 676 (note), 51 ALJR 235 (GMH v Bowling) concerning the effect of an analogue in earlier industrial legislation, which were cited with approval in the Bendigo Institute Case.

46    The particular “general protection” within Pt 3.1 with which the Bendigo Institute Case was concerned was s 346 to an alleged contravention of which the presumption found in s 361 was likewise applicable. The judgements delivered in the Bendigo Institute Case confirm what a reading of s 361 of the Fair Work Act would otherwise suggest, which is that the section focuses attention on the reason why an employer took the action concerned against the employee: Bendigo Institute Case per French CJ and Crennan J at [42], per Gummow and Hayne JJ at [101] and per Heydon J at [146]. The section does not relieve an applicant of proving the other elements of an alleged contravention of a “general protection” provision. It does though cast on to the respondent employer the onus of proving on the balance of probabilities that the reason for the alleged conduct was not that specified in, materially, s 340 as further particularised by the applicant.

47    In expanding on the practical effect of s 361 in relation to the defence of an alleged contravention of a “general protection” to which the presumption applied, French CJ and Crennan J stated, at [45]:

This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.

[Internal footnote references omitted]

48    Earlier, in GMH v Bowling (1976) 51 ALJR at 241, Mason J, with whom Stephen and Jacobs JJ agreed, made the following observations in relation to the analogous presumption found in the then s 5(4) of the Conciliation and Arbitration Act:

Section 5(4) imposed the onus on the [employer] of establishing affirmatively that it was not actuated by the reason alleged in the charge. The consequence was that the [employee], in order to succeed, was not bound to adduce evidence that the [employer] was actuated by that reason, a matter peculiarly within the knowledge of the [employer]. The [employee] was entitled to succeed if the evidence was consistent with the hypothesis that the [employer] was so actuated and that hypothesis was not displaced by the [employer]. To hold that, despite the subsection, there is some requirement that the prosecutor brings evidence of this fact is to make an implication which, in my view, is unwarranted and which is at variance with the plain purpose of the provision in throwing on to the [employer] the onus of proving that which lies peculiarly within his own knowledge.

49    In that same case, Gibbs J had stated, (1976) 51 ALJR at 239:

The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal. If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.

[Emphasis added by Gummow and Hayne JJ in the Bendigo Institute Case at [88].]

50    In this case, the persons within Sunstate and its parent concerned with the action taken by Sunstate against the LAME employees gave direct evidence as to why that action was taken. In particular, the ultimate decision-maker in respect of Sunstate and the LAME employees, Mr Paul Lidbury, in October 2010 the Head of Operations and now the Head of Maintenance for QantasLink, gave evidence. That body of evidence falls to be considered with the other evidence in the case in determining whether Sunstate has discharged, on the balance of probabilities, the onus of proving that it did not take action against those employees because they had exercised or proposed to exercise a workplace right.

51    The factual resolution of this case requires an understanding of the industrial context in which the events of the evening of 19 October 2010 occurred, of the regime applicable under the CAA for the reporting of defects in aircraft and of what was known within Sunstate and its parent before that evening of a vulnerability in the efficacy of the then cockpit door lock for the Dash 8 aircraft.

52    As to the industrial context, the following emerges from the evidence of Ms Lisa Thomas (Industrial Relations Manager for QantasLink), Mr David Delahay (Manager, Line Maintenance for QantasLink and a qualified aircraft maintenance engineer in his own right) and Mr James Allan (“Head of People”, a senior human resource management position, for QantasLink) whose evidence on this subject I unreservedly accept. The parenthetical references as to positions held by these persons are to the positions which they held as at October 2010.

53    As at October 2010 the employment of each of the LAME employees was governed by an employment contract which was subject to the operation of the Licensed Aircraft Engineers Sunstate Airlines Enterprise Agreement 2006-2009 (the enterprise agreement). According to its terms, the enterprise agreement expired on 30 June 2009. It had, however, continued in operation after that date because of the absence of a replacement agreement.

54    During 2009 and up to and including October 2010 the ALAEA and Sunstate had been in negotiations in relation to a replacement agreement for the enterprise agreement. Those negotiations had at times been accompanied by industrial action undertaken by the ALAEA and its members.

55    In February 2010 a proposed replacement agreement was put to a vote by Sunstate employees. It was not approved. Further negotiations between Sunstate and the ALAEA then resulted. On 17 May 2010 the industrial commission approved an application by the ALAEA for a protected industrial action ballot order. In the ballot which subsequently followed the LAME employees were amongst those balloted. The result of this ballot was declared on 4 June 2010. A majority of those balloted (18 out of 26 licensed aircraft maintenance engineers) approved the taking of protected industrial action.

56    After the ballot result had been declared, Sunstate received from the ALAEA on or about 9 June 2010 a notice notifying it that employees (namely its licensed aircraft maintenance engineers) proposed to take industrial action in support of their claims in respect of a replacement agreement. On 15 June 2010 Sunstate made application to the industrial commission for an order that the employees stop unprotected industrial action on the basis that the notice concerned had failed to specify the nature of the industrial action and was therefore defective.

57    On or about 22 June 2010 Sunstate received a further notice of proposed industrial action from the ALAEA. Thereafter, on various occasions between 23 June and 18 August 2010, employees engaged in work stoppages and in bans on overtime, travel away from home for work related purposes higher duties and secondments. It is common ground that these actions each constituted protection industrial action.

58    Industrial action in the form of “go slow” action continued to be taken after 18 August 2010 by various licensed aircraft maintenance engineers who were employed by Sunstate and who were members of the ALAEA. As observed by Mr Delahay, this entailed an increase in man hours in performing maintenance and repairs on aircraft, regular refusal to perform reasonable overtime on request, maintenance engineer unavailability at aircraft receipt and dispatch times, failure to report unserviced aircraft and a refusal to undertake the role of Leading Hand on an acting basis. Mr Fuller, one of the LAME employees, confirmed in his evidence the existence of an ongoing overtime ban by the licensed aircraft maintenance engineers at the Brisbane Airport maintenance facility.

59    Mr Delahay was well placed to make these observations by virtue of his position and experience. He has been a qualified aircraft maintenance engineer for some 34 years. He was in 2010 and had been for some 22 years the Manager, Line Maintenance for QantasLink. He was based in Brisbane. His duties included overall control of all line maintenance carried out for both Sunstate and Eastern Australia Airlines under each company’s Maintenance Certificate of Approval issued under reg 30 of the CA Regs. He was, inferentially, well familiar with the workplace at the Brisbane Airport where the notices were displayed and, by virtue of his supervisory capacity, with the work and work practices of the licensed aircraft maintenance engineers employed there. He was likewise well familiar with the maintenance requirements and procedures in respect of the Dash 8 aircraft. I have no hesitation in accepting Mr Delahay’s evidence of various “go slow” practices which he observed.

60    Mr Delahay reported directly to Mr Lidbury, who was based in Sydney.

61    These actions moved Sunstate to apply to the industrial commission on 6 October 2010 for an order that the ALAEA and its members stop unprotected industrial action occurring.

62    That application was heard by the industrial commission on 7 October 2010. With the consent of Sunstate, that application was adjourned by the industrial commission on the basis of an undertaking, given on behalf of itself and its members by the ALAEA, not to engage in or threaten to engage in unprotected industrial action and to perform work as normal as directed by Sunstate. The ALAEA was required to notify its members employed at Sunstate’s Brisbane Airport maintenance facility of the undertaking. Mr Delahay received by email from Mr Steve Purvinas of the ALAEA a copy of this notice on 8 October 2010 at about 08:18. That same day Mr Delahay:

(a)    placed a copy of the terms of the undertaking given by the ALAEA on the notice boards in the workshop and hanger at Sunstate’s Brisbane Airport maintenance facility; and

(b)    met at that facility with various Sunstate licensed maintenance engineers and informed them in words to this effect, “ … your union has given an undertaking. This means that you should work like you did before you were angry at us [Sunstate]”.

63    Mr Delahay stated (and I find) that the notice boards where he placed the notices were easily seen and accessed by the employed licensed aircraft maintenance engineers. The boards were located in places where such employees have lunch.

64    Mr Lidbury gave evidence, which I accept, that, though he did not have direct involvement in them, he was, by virtue of his then position as Head of Operations, kept up to date by the QantasLink negotiating team with the progress of enterprise bargaining negotiations occurring in respect of a replacement agreement for Sunstate and also in respect of like negotiations which were occurring in relation to Eastern Australia Airlines. Given the direct line reporting role as between him and Mr Delahay, it is also inherently likely that Mr Lidbury was similarly kept up to date by him as to events on the ground at the maintenance facility at Brisbane Airport.

65    On the basis of Mr Delahay’s evidence, I find that, even after the ALAEA had given the undertaking to the industrial commission, licensed aircraft maintenance engineers at the Brisbane maintenance facility continued to engage in various “go slow” practices. They also conducted aircraft “ramp” checks beyond the usual requirements for such checks. Mr Delahay reported these practices to, amongst others, Ms Thomas. On 19 October 2010 and on the basis of these practices, Sunstate requested the industrial commission again to list its application against the ALAEA and its members for an order that they stop unprotected industrial action. That re-listing was fixed to occur on 20 October 2010. Having regard to the submissions made to the industrial commission (Commissioner Simpson) on 20 October 2010 by Mr Purvinas on behalf of the ALAEA, the union received notice of the re-listing on the afternoon of 19 October 2010.

66    I make this finding even though there is some evidence to the contrary from some of the LAME employees as to “go slow” practices during the period following the giving of the undertaking to the industrial commission.

67    Of the LAME employees, Mr Pengelly admitted in evidence that he was aware that the enterprise agreement was due for renewal. Messrs Kuhanez and Posavac each acknowledged that they were aware of the expiry of that agreement. Messrs Kuhanez, Baldcock, Posavac and Fuller were each aware that the ALEA had given notice to Sunstate that protected industrial action was to be taken. Mr Posavac disclaimed any awareness that non-protected industrial action was taken after the undertaking was given. He considered that thorough maintenance practices were being undertaken. Mr Pengelly gave similar evidence in this regard, describing a 3 day maintenance period for a Dash 8 aircraft as not unusual.

68    As against such evidence and as will be seen was the effective, temporary grounding of the Dash 8 aircraft at Brisbane over the course of the late evening of 19 October 2010 and into the early hours of the morning of 20 October 2010. This occurred a time when, given the overtime bans then in place it was likely to cause maximum disruption to Sunstate’s passenger transport operations. In terms of the detail and explanations offered, the responses of the LAME employees concerning the events of that evening in the investigation which followed shortly thereafter stand in marked contrast to the affidavits which each gave many months after the event.

69    My overall assessment of the LAME employees’ evidence was that each such employee was inclined to diminish, if not fail candidly to acknowledge the extent of practices being employed by them so as to exert pressure on Sunstate in relation to the resolution in their favour of a replacement enterprise agreement. It was not a coincidence that the temporary grounding occurred immediately after Sunstate had given notice of the renewal of its application to the industrial commission and just prior to when that matter was again to be heard. Rather, that temporary grounding was just one more chapter in a saga of industrial action, some protected, some not, which accompanied the negotiations directed to the making of a replacement agreement.

70    For these reasons, I accept Mr Delahay’s account of the events leading up to the evening of 19/20 October 2010. Before turning to the events of that evening, it is desirable to canvas the evidence concerning and to make findings in respect of what was known of any vulnerability of the cockpit door lock in the Dash 8 aircraft prior to that evening and what, if anything, was already then in train about the rectification of any such vulnerability.

71    Of all of the persons who gave evidence before me, Mr Lidbury was, by virtue of his then position, the best placed to give evidence on these subjects, so far as Sunstate’s corporate knowledge was concerned. His was a senior, strategic management position which gave him a whole of fleet knowledge. Mr Lidbury was also not only a manager but also well qualified and experienced in relation to aircraft maintenance. He completed a four year apprenticeship in aircraft maintenance with Qantas in 1978. In 1985 he completed the degree of Bachelor of Engineering (Industrial/Mechanical) at the University of Technology, Sydney. Ever since 1978, he had been employed in a variety of operational roles with either Qantas or Air Pacific. As the then Head of Operations for QantasLink, Mr Lidbury was the accountable person for the Air Operator Certificates issued by the Civil Aviation Safety Authority (CASA) under the CAA both to Sunstate and to Eastern Australian Airlines. In this capacity, Mr Lidbury was accountable for all aspects of each airline’s operations, including aircraft technical specification and airworthiness. I found that his evidence on the subjects mentioned and as to his background knowledge and belief was candid and, especially in light of the contemporary documentation in evidence, credible. The following emerges from his evidence.

72    As early as 28 February 2010 a report had appeared in the “Herald Sun” newspaper in which, in the context of a more general article about security at Australian regional airports, it was stated, “And a commonly used regional commuter aircraft - the Dash 8 - has been deemed ‘critically vulnerable’ because it cannot be locked and has a weak point in its cockpit door.”

73    In response to this newspaper report, Mr Lidbury directed the QantasLink Engineering Department, which serviced both Sunstate and Eastern Australian Airlines, to investigate the claims in the report by conducting an investigate the claim concerning the Dash 8 by conducting an assessment of the aircraft of that type operating under the QantasLink name. This necessarily included Dash 8 aircraft operated by Sunstate. The result of that engineering investigation was that, if two persons with specialist knowledge of the components of an aircraft worked together, it was at that time possible, in respect of two QantasLink Dash 8 aircraft, to flex a panel adjacent to the cockpit door.

74    Mr Lidbury considered that the results of the investigation validated that the installation of the Dash 8 cockpit doors had been fully approved by the Federal Aviation Administration Authority and the aircraft manufacturer such that the Dash 8 aircraft met all Australian security requirements. He further considered that the issue was not one which was required to be reported either to the Office of Transport security or to CASA. Yet further, though he considered that no modifications were required to be made, he nonetheless accepted a recommendation from the Engineering Department as to an extra precautionary modification which might be made to the two aircraft concerned. It is not necessary to detail the detail the nature of the modifications which were consequentially made to the two aircraft concerned.

75    So far as Mr Lidbury was concerned, there matters rested in relation to the security of Dash 8 cockpit doors until on 2 September 2010 a Sunstate pilot, Captain P Schryver, lodged with Sunstate’s Mr Richter (then the Safety Systems Manager) what Mr Lidbury termed a Safety Observation Report (SOR) in respect of a Dash 8 aircraft (Australian aircraft registration number VH-QOE). In Mr Richter’s affidavit, this same document (albeit in a different format but with the same substantive content) is termed an Air Safety Incident Report (ASIR). Mr Richter explains in his affidavit that a SOR and an ASIR are “essentially the same thing”, the former being one which any employee, including a licensed aircraft maintenance engineer, the latter being one submitted by pilots. The procedures are the same for each and each is actioned in the same way. It is just that the forms are different. For convenience, I shall use the abbreviation “SOR”.

76    In the SOR Captain Schryver offered the following observations:

Background to incident ……… Since transferring to the Q400 fleet I had overheard from Engineers and Pilots that if you had lost the key to the flight deck or had broken the key in the door lock, you would be able to gain entry to the flight deck whilst it was locked. I had been told that if you placed light pressure against the toilet door bulkhead next to the flight deck lock, the door will open.

Upon arriving at the aircraft, VH-QOE, in Bundaberg off an overnight I proceeded to the flight deck to conduct my checks. As I was about to open the door using the key, I thought about the advice given and tried to open the door without the key.

By placing minimal pressure against the bulkhead I was able to open the door without the key. In the first instance this took me 3 seconds to accomplish and 1 second once I knew exactly where to apply pressure.

As I saw no defect in the door or bulkhead I decided to operate the aircraft as per scheduled. I briefed my First Officer and Cabin Crew and we agreed to operate but with increased security awareness for the remainder of the duty.

The door is required under Airline Transport Safety Regulation 2005 – 4.6 to be able withstand forcible intrusion by persons attempting to enter the flight deck. This door is clearly not able to withstand the forces legislated.

77    In evidence, Mr Lidbury expressed agreement with the description of the structural phenomenon offered by Captain Schryver in the SOR but not with the opinion that, “The door is clearly not able to withstand the forces legislated.” He considered that this opinion was incorrect and that Captain Schryver was not qualified to express that opinion. In contrast, Mr Lidbury was qualified to express an opinion as to the structural integrity and suitability of the cockpit door. This was not just because of his formal qualifications and lengthy experience but also because of a personal involvement he came to have in the response within QantasLink to Captain Schryver’s SOR.

78    Before detailing that response and Mr Lidbury’s involvement in it, I record that I found Captain Schryver’s SOR of assistance for another reason. It is quite plain from its contents as to the “background” that there was, as at 2 September 2010, within the body of QantasLink pilot and “Engineer” (inferentially, licensed aircraft maintenance engineers as well as those with professional engineering qualifications) staff a belief on the part of some other than just Captain Schryver that there was a vulnerability of the kind he described about the cockpit door. Consistently with what Captain Schryver had recorded in his SOR, Mr Lidbury attested to the February report in the Herald Sun having “generated rumours within the Engineering and Maintenance Department of QantasLink about the supposed issue”. I found the corroboration in the SOR of Mr Lidbury’s statement about earlier knowledge of assistance when assessing his credibility and, in particular, in assessing the credibility of the evidence which he gave as to why he had come to decide that Sunstate should take particular action in respect of the LAME employees. An understanding of the background knowledge and beliefs which Mr Lidbury professed to possess in relation to his decision and an assessment of his credibility in this regard is important having regard to what was said in the Bendigo Institute Case in relation to s 361 of the Fair Work Act. As I have already observed, I found him a credible witness.

79    Whatever knowledge, understanding or belief there was before 2 September 2010 within QantasLink staff (that is those who worked for one or the other of Sunstate or Eastern Australian Airlines or provided services to those entities from elsewhere within the Qantas Group of companies) about a cockpit door vulnerability with the Dash 8 aircraft in the fleet, that knowledge, understanding or belief was not universal. None of the LAME employees admitted to any such knowledge at this stage. Nor did Mr Richter, the Manager Quality, Aircraft Maintenance for QantasLink (employed by Sunstate) at Brisbane Airport or Mr Lee-Horn, the Maintenance Controller for QantasLink (employed by Sunstate) also at Brisbane Airport have any such knowledge before September 2010. It seems inherently likely that, whatever knowledge, understanding or belief there was before then was confined to those who had been involved in the QantasLink response to the Sun Herald report or those who had spoken informally with such persons (or via second or more hand means from such persons).

80    Following Captain Schryver’s submission of the SOR, he was interviewed by Mr Richter who, in turn, on 4 September 2010, briefed Mr Lidbury. In the course of that briefing Mr Richter said to Mr Lidbury:

Captain Schryver tested the frame in this way because he had heard talk around the place that it was possible for a person to force their way in to the cockpit by putting pressure on a particular part of the door. Although he confirmed it was possible for the door to distort, he determined that there was no defect within the door or door frame and therefore the aircraft was airworthy and serviceable.

81    Mr Richter also initiated other investigations and related remedial action. He detailed these and the related governing procedural manual directions at some length in his affidavit evidence in chief. It is not necessary to detail these procedures. Suffice it to say, the SOR was promptly actioned by the QantasLink Engineering Department. An occurrence log within the Engineering Department records the consequential raising within that department of a “Serious Defence Report” in which it is noted that the report had been raised in respect of the striker plates for the cockpit door lock of aircraft VH-QOE, “because a portion was cracked and missing, resulting in poor locking performance”. The SOR and this consequential report was actioned by the QantasLink Engineering Department on 6 September 2010 by the replacement of the striker plates. The SOR was then “closed off”, ie the issue raised was concluded to be satisfactorily addressed for the purposes of all applicable procedures.

82    It should also be recorded that, at all times, there existed an alternative locking mechanism for the cockpit door in respect of the Dash 8 aircraft. It is neither necessary or, in my opinion, desirable to detail in this judgement the nature of that mechanism or how it was actuated.

83    At the same time as Captain Schryver lodged his SOR he raised the same subject as a security issue with Mr S Tregarthen, the Regional Security Manager, based at Brisbane Airport, for Sunstate’s parent corporation, Qantas Airways Limited. In that report Captain Schryver recorded by way of background, inter alia, that, confronted with a need overnight at unsecured airports to lock the flight deck to the Dash 8 aircraft and to retain the key and the occurrence of lost or broken keys, “I spoke with an engineer (inferentially again a reference to a licensed aircraft maintenance engineer) about this who mentioned that the … door has a weak bulkhead and if flexed near the lock for the flight deck door, the door will be able to be opened whilst locked and without the key”. In his security issue report Captain Schryver then went on to describe his confirmation of this by experience.

84    By 8 October 2010, as is apparent from email correspondence from Mr Tregarthen to Mr Richter, this security issue report had been identified within QantasLink as had already been reported via the SOR. On 9 October 2010 another QantasLink pilot, Captain A Reitano lodged an SOR which raised a like issue in relation to the cockpit door as had Captain Schryver earlier.

85    In his affidavit evidence in chief Mr Lee-Horn offered what I thought was a good summary of the remedial action taken within the QantasLink Dash 8 operators as a sequel to Captain Schryver’s SOR and whether or not this entailed any airworthiness issue:

105.    During the whole period from early September 2012 until 18 October 2010, all of Sunstate’s Dash-8 aircraft that displayed the characteristic relating to the cockpit door referred to in [emails enclosing or reporting the SOR], continued to operate normally while the modification program was progressively planned and undertaken, and no LAME or other QantasLink engineering staff member or contractor entered this issue as an open defect on a QL-3 and no Dash-8 aircraft was grounded as a consequence of the existence of this ‘defect’.

106.    I recall that about this time, QantasLink management team started having regular conference calls between Line Maintenance and Engineering in response to this issue. These meetings involved Mr Fabian, Mr Leben, Mr Stuart Richter and me. The meets were prompted by Occurrences submitted by Captain Reitano and another pilot, Captain Schryver, who submitted an Occurrence while I was on leave.

107.    I cannot recall precisely how many meetings we had or what was said between us, but the meetings were informal and ad-hoc in nature. Their purpose was to assess the Approved Data to check that the cockpit doors and the cockpit door locks met the design criteria.

108.    The outcome of the meetings was that the cockpit doors and cockpit door locks, as fitted, were found to be in accordance with the design criteria in the Approved Data. The cockpit doors and cockpit door locks had been installed correctly in accordance with the applicable STC and Approved Data.

109.    In my professional experience and opinion, the issues raised in relation to the cockpit doors had no effect on the airworthiness of the aircraft. The ability of the bulkhead or the door to be distorted in this way had no effect whatsoever on the structural strength of the airframe. It is important to note that this Dash-8 aircraft type had been originally designed and was operated without the ballistic cockpit door installed. This type of cockpit door was retro-fitted after the 9/11 crisis purely for security reasons, and the less robust original equipment manufacturer door was removed. Neither the original cockpit door nor the replacement cockpit door have any role to play in the technical, structural or aeronautical aspects of the aircraft.

110.    The QantasLink management team determined that the propensity of a cockpit door to be opened by way of distortion of the surround bulkhead was a design flaw which arose from the retrofitting of an STC ballistic door to this aircraft type. The flaw was the ability of the door pillar to be flexed so as to move past the striker plate. The fix was to place a shim behind the striker plate so that the locking bolt had better engagement with the hole in the door pillar. The CAR 35 approved service provider engaged to design the fix was Auto Avia, who eventually generated the EO dated 16 and 17 October 2010.

111.    The modifications in accordance with the scheduled maintenance program commenced on or about 16 October 2010 and were to take place progressively until about 20 October 2010.

112.    LAMEs were not informed about the scheduled maintenance unless and until they were tasked with the specific implementation of the EO in relation to a particular aircraft. We do not always communicate these issues to the LAMEs at large. I specifically did not do so in this case because I considered it to be a benign modification for a non-airworthiness issue.

86    A number of abbreviations are used by Mr Lee-Horn in this passage, in respect of some of which I set out a more detailed explanation below:

Abbreviation explanation:

    QL3 - The designation of a Technical Log form.

    EO - Engineering Order.

    STC - Supplemental Type Certificate.

    LAME - Licensed Aircraft Maintenance Engineer.

87    The Engineering Order (EO) to which Mr Lee-Horn refers in the passage quoted was EO No 201/353/EII dated 16 October 2010 prepared by AutoAvia, a CASA approved designer. This EO specified approved data for the installation of a striker plate modification for the cockpit door of 22 Dash 8 aircraft, which included each of those which came to be the subject of actions by the LAME employees on the evening of 19 October 2010.

88    Provision for what is termed a Technical Log in a form designated “QL3” is made in the Maintenance Control Manual (MCM), Volume 1, Chapter 10 of which details maintenance release requirements. The forms and procedures in this chapter of the MCM have been approved by CASA. They fulfil for QantasLink operators (and hence Sunstate) a requirement flowing from reg 43 of the CA Regs, which provided:

Maintenance releases in respect of Australian aircraft

(1)    Maintenance releases in respect of Australian aircraft shall be issued only by authorised persons and only in such manner, and in accordance with such form, as CASA directs or approves.

(2)    CASA may give a direction specifying the information to be entered on a maintenance release before its issue.

(3)    Where a person appointed as an authorised person for the purposes of this regulation is a body corporate, CASA shall specify in the instrument of appointment the condition that any maintenance release issued by the authorised person is to be signed, on behalf of the authorised person, by a specified person or by a person included in a specified class of persons.

(4)    CASA may give a direction with respect to the retention and transfer of maintenance releases and copies of maintenance releases issued under this regulation.

(5)    CASA may give a direction specifying the period, or the maximum period, that a maintenance release of a kind specified in the direction is to be expressed to remain in force.

(6)    A maintenance release may be issued in respect of an aircraft only if:

(a)    there is in force, a certificate of airworthiness for the aircraft; or

(b)    CASA has approved the issue of the maintenance release.

(7)    A maintenance release may be issued in respect of an aircraft only if:

(a)    all maintenance in respect of the aircraft required to be carried out to comply with any requirement or condition imposed under these regulations has been certified, in accordance with regulation 42ZE or 42ZN, to have been completed; or

(b)    for a maintenance release for a flight under a permission to fly in force under subregulation 317 (1) — the completion of any maintenance required under a condition of the permit, or under a direction in relation to the permit or permission, has been certified under regulation 42ZE or 42ZN.

(8)    For the purposes of paragraph (7) (a), the existence of an earlier maintenance release issued by virtue of that paragraph in respect of an aircraft may, in the absence of evidence to the contrary, be accepted by an authorised person for the purposes of this regulation as proof that all maintenance required under these regulations to be carried out on the aircraft before the date of issue of the earlier maintenance release has been certified to have been completed as required by that paragraph.

(9)    A maintenance release may bear an endorsement that the release is issued subject to a condition set out in the endorsement, being a condition imposed for the purpose of ensuring the safety of air navigation.

(10)    Where an aircraft has a permissible unserviceability, a maintenance release issued in respect of the aircraft, or other document approved for use as an alternative to the maintenance release for the purposes of this subregulation, shall bear an endorsement:

(a)    setting out each permissible unserviceability that exists with respect to the aircraft;

(b)    setting out such of the conditions (if any) with respect to the use of an aircraft with those permissible unserviceabilities set out in any direction given under regulation 37 in relation to those permissible unserviceabilities as are not set out in any operations manual issued with respect to the aircraft or in Part 20 of the Civil Aviation Orders; and

(c)    stating that the maintenance release is issued subject to those conditions, whether set out in the maintenance release or the other document or otherwise.

(11)    A person shall not issue a maintenance release in contravention of this regulation.

Penalty:

(a)    for a contravention of subregulation (1) — 25 penalty units; or

(b)    for a contravention of subregulation (6) — 25 penalty units; or

(c)    for a contravention of subregulation (7) — 50 penalty units; or

(d)    for a contravention of subregulation (10) — 10 penalty units.

(11A)    A person must not contravene:

(a)    a direction; or

(b)    the condition specified in subregulation (3); or

(c)    a condition to which a maintenance release is subject.

Penalty:

(a)    for a contravention of a direction under subregulation (2) — 10 penalty units; or

(b)    for a contravention of the condition specified in subregulation (3) — 10 penalty units; or

(c)    for a contravention of a direction under subregulation (4) or (5) — 5 penalty units; or

(d)    for a contravention of a condition under subregulation (9) — 50 penalty units.

(12)    Subregulation (11) does not apply in relation to a person by reason only that he or she has issued a maintenance release in contravention of a direction given under this regulation unless the direction has been served on the person.

(13)    A person shall not sign a maintenance release to be issued by virtue of paragraph (7) (a) in respect of an aircraft if:

(a)    the person considers that:

(i)    the aircraft is in a damaged condition or is defective;

(ii)    the damage is major damage or the defect is a major defect, as the case may be; and

(iii)    the damage or defect is not a permissible unserviceability;

(b)    the person considers that maintenance carried out on the aircraft may have adversely affected, to such an extent as to affect the safety of the aircraft, the flight characteristics of the aircraft or the operating characteristics of any aircraft component, or of any system of aircraft components, installed in the aircraft;

(c)    the person is aware that certain maintenance that has been carried out on the aircraft has not been certified, in accordance with regulation 42ZE or 42ZN, to have been completed; or

(d)    the person is aware that:

(i)    information entered on the maintenance release is incorrect; or

(ii)    the maintenance release does not contain all information that it is required by or under these regulations to contain.

(13A)    A person must not contravene subregulation (13).

Penalty:

(a)    if the person signs the maintenance release in contravention of paragraph (13) (a) or (b) — 50 penalty units; or

(b)    if the person signs the maintenance release in contravention of paragraph (13) (c) — 10 penalty units; or

(c)    if the person signs the maintenance release in contravention of paragraph (13) (d) — 25 penalty units.

(15)    A direction given under this regulation does not have effect in relation to a person until it has been served on the person.

(16)    Where a maintenance release is issued under this regulation, or again commences to be in force by virtue of regulation 48, in respect of an aircraft, any other maintenance release in force in respect of the aircraft immediately before that issue or that commencement, as the case may be, ceases to be in force.

(17)    An offence against subregulation (11) or (11A) is an offence of strict liability.

Note For strict liability, see section 6.1 of the Criminal Code.

89    As correctly related by Mr Lee-Horn in his affidavit evidence in chief Chapter 10 of Volume 1 of the MCM makes provision for procedures utilising three key forms:

(a)    Maintenance Release (QL-1);

(b)    Flight Record (QL-2); and

(c)    Technical Log (QL-3).

46.    The QL-1 is used to certify any aircraft for return to service after a nominated check. This is commonly referred to as a C-check and is usually completed by Heavy Maintenance in Tamworth, a sub-group of Line Maintenance

47.    The QL-2 is the flight record sheet and is used to keep a record of the aircraft’s flight times, flight sectors to and from, and fuel consumption. It is also contains details of the following:

(a)    flight crew;

(b)    engine trend monitoring data;

(c)    duty times and training records;

(d)    Ramp Service Checks; and

(e)    oil quantity inspection and recording.

48.    The QL-3 is used for the recording and subsequent deferral and/or resolution of defects identified by pilots or LAMEs. The QL-3 is different from the QL-2 because the QL-3 is used exclusively for recording aircraft maintenance and deferred defects/maintenance.

49.    Maintenance release documentation is kept on board the aircraft at all times and is considered to be a legal document because of its origin in the MCM, which serves a regulatory function.

90    Mr Lee-Horn is well qualified to express the opinion which he gives in the passages quoted. His opinion is not, of course, admissible, much less definitive as to the meaning of governing CA Regs or material such as the MCM serving ends to which those regulations are directed. It is nonetheless both admissible and valuable in any event in terms of industry practice and even more so QantasLink practice in relation to how practical effect was sought to be given to requirements stemming from the CA Regs and materials such as the MCM. As at 27 June 2011 he had some 41 years experience in aircraft maintenance. Of this period he had been a licensed aircraft maintenance engineer since 1978. As far as the Dash 8 aircraft type is concerned, his licence was restricted to airframes and engines but did not extend to instrumentation, electronics or radios. The result of recent changes to the CA Regs so as to introduce a requirement for a licensed aircraft maintenance engineer to work within a Line Maintenance Department have had the result that, from 27 June 2011, Mr Lee-Horn’s licence is no longer current.

91    Mr Lidbury took a direct personal interest in the addressing of the cockpit door issue identified in Captain Schryver’s SOR. He did not content himself with briefings. He inspected personally the cockpit door of one Dash 8 aircraft so as to ensure that he fully understood the issue raised. His advice from the QantasLink Engineering Department was that, although the cockpit doors were considered airworthy, it was nonetheless appropriate to develop a modification as an extra precaution and to minimise the risk of the door being forced open by applying pressure to the frame. Mr Lidbury agreed with this assessment and course of action. The Engineering Department then worked with the manufacturer of the Dash 8 aircraft to develop an appropriate modification and related procedure. The modification and related procedure required the approval of CASA. By 9 September 2010 the modification process in relation to the Dash 8 fleet had commenced.

92    For the purposes of the CASA approved, QantasLink MCM, an aircraft is considered “airworthy” if:

(a)    the aircraft conforms to the type design;

(b)    any modifications to the aircraft have been carried out in accordance with approved maintenance data; and

(c)    the aircraft is in a condition for safe operation.

93    On the basis of the MCM and the evidence of Mr Lidbury and, in particular, Mr Lee-Horn, I conclude that the phenomenon identified in Captain Schryver’s SOR did not affect the airworthiness of the Dash 8 aircraft. That is because the phenomenon did not have the consequence that the components concerned in the Dash 8 aircraft were not operating in accordance with the Approved Data for that aircraft type, a Supplemental Type Certificate for that aircraft type or the manufacturer’s data record. The aircraft retained the capacity safely to take off, fly, land and otherwise to operate in accordance with such requirements.

94    Because the phenomenon identified the airworthiness of the Dash 8 aircraft, there was no consequential requirement flowing from it which required the QantasLink Dash 8 aircraft fleet to be grounded.

95    Mr Lee-Horn offered what I regard as a reliable guide as to the usual practice, having regard to the requirements of the CA Regs and especially the MCM, in relation to the completion of a QL3 by a licensed aircraft maintenance engineer. He set out that practice in elaborate detail in his affidavit evidence in chief. It is not necessary to describe the practice in such detail in these reasons for judgement. Defect identification and classification by a licensed aircraft maintenance engineer and consequential annotation of a QL3 is an integral, important and responsible part of the duties of that trade.

96    The MCM defines a number of different types of defects. Any licensed aircraft maintenance engineer (and the LAME employees were no different) is expected, by virtue of that trade qualification, to have the ability correctly to assess any type of defect encountered in the course of his duties, Of these defects, some are airworthiness defects of one sort or another and others are what are termed Non-Airworthiness Defects (NAD).

97    Provision is made within the MCM for what is known as a QL3 Technical Log Flow Chart. The flow chart sets out a number of steps associated with the assessment, classification and remedying of various types of aircraft defects. Step 2 of that flow chart sets out a requirement to assess a defect for “MEL/CDL/DWL/NAD applicability”. The other abbreviations, the nature of which it is not necessary further to describe (details are in Mr Lee-Horn’s affidavit) are:

    MEL - Minimum Equipment List;

    CDL - Configuration Deviation List

    DWL - Deferred Within Limits.

98    An “NAD” defect is one not covered by the provisions of the MEL/CDL/DWL as specified in the MCM and assessed as not affecting the airworthiness of an aircraft. If in the course of his duty a licensed aircraft maintenance engineer identifies a defect or an issue that does not go to the airworthiness of an aircraft that tradesman can, as a matter of practice and without contravening a requirement of the MCM do one or more of the following:

(a)    enter the defect as a NAD in the QL3;

(b)    submit a SOR in respect of the defect or issue so as to instigate an investigation through QantasLink safety systems channels (such as that which occurred when Captain Schryver lodged his SOR);

(c)    speak to the Maintenance controller about the defect or issue.

99    All defects entered on a QL3, be they airworthiness or non-airworthiness in nature, must be resolved at some stage. That is so even in respect of a defect assessed as NAD.

100    It is a matter of common knowledge amongst licensed aircraft maintenance engineers, and knowledge which each of the LAME employees possessed, as did Messrs Lidbury, Lee-Horn, Richter and Delahay that the combined operation of the CA Regs and the MCM is that an airworthiness defect noted on a QL3 will have the consequence that the aircraft concerned is thereby regarded as unserviceable and unable lawfully to be flown unless and until that defect is addressed. A defect which has been entered on a QL3 without the making of any entry stating that remedial action in respect of the defect can or should be deferred is termed an “open defect”. There is a part of the QL3 on which is recorded any decision as to deferred action in respect of a defect. A QL3 form also contains a part entitled “Resolution”. Into this part is entered the remedial action taken either by the licensed aircraft maintenance engineer who raised the QL3 after noting and classifying a defect or another such tradesman. If the “Deferred Action” part of a QL3 is not completed for any reason then the aircraft concerned must be kept out of service unless and until the remedial action has been undertaken and recorded in the “Resolution” part of the QL3 by a licensed aircraft maintenance engineer.

101    Where “deferred action” has been entered on a QL3 in respect of an aircraft, the consequence also is that the defect concerned will be scheduled by the Maintenance Controller for “line maintenance”. That means within the QantasLink fleet that the aircraft’s defect will be remedied by the Line Maintenance Department at a maintenance base such as those at Brisbane or Cairns Airport, depending on where the aircraft is when the defect is noted on the QL3 and grounded.

102    It is a matter of standard practice in the trade of a licensed maintenance engineer that the duties of such a tradesman include the taking of such steps as are necessary to rectify an aircraft defect in a way that will, as far as practical, keep an aircraft in service.

103    Knowledge of the practices and common trade knowledge of licensed aircraft maintenance engineers becomes important when assessing the actions and intentions of both Mr Lidbury and the LAME employees in relation to the events of the evening of 19 October 2010. In assessing the actions of the LAME employees during October 2010 up to and including that evening it is also necessary to bear in mind that, as each acknowledged in the course of oral evidence, each of them had been working in their trade on Dash 8 series aircraft for many years.

104    At 09:00 on Saturday, 16 October 2010 one of the LAME employees, Mr Pengelly, made a defect entry in a QL3 in respect of a Dash 8 aircraft, registration number VH-QOD in which he recorded, inter alia, “Cockpit door is able to be opened while still in the locked position”. An examination of the whole of the QL3 defect description of which this is the key passage makes it clear that the defect described by Mr Pengelly is of the same kind to the cockpit door issue identified in Captain Schryver’s SOR. No deferred action was noted on this QL3. This is therefore an example of an “open defect” QL3 as described above. The defect was resolved and the resolution portion of QL3 annotated accordingly on 17 October 2010 at 21:45 by another of the LAME employees, Mr Posavac. Mr Posavac installed the door modification which had been previously approved.

105    The following day, at 23:23 on Monday, 18 October 2010 another of the LAME employees, Mr Kuhanez made a defect entry in another QL3 in respect of that same but newly modified Dash 8 aircraft, registration number VH-QOD. On this occasion, the defect annotated was, “cockpit door found to be unsafe in ‘locked’ condition”. The entry was made 37 minutes prior to the end of Mr Kuhanez’ 8 hour shift that day. That shift finished at midnight. There was no other maintenance shift immediately following that shift. Once again, no deferred action was noted on this QL3. This is therefore another example of an “open defect” QL3. The effect of the QL3 being left open was that this Dash 8 aircraft was again deemed unserviceable and unable to be flown until the annotated defect was resolved. That did not occur until 16:45 on 19 October 2010 when another licensed aircraft maintenance engineer, Mr Bowdery (who is not one of the LAME employees) installed an approved replacement lock set. Also on 18 October 2010, at 23:35, Mr Kuhanez lodged an SOR in relation to the same issue noted on the QL3 as a defect. QantasLink commenced an occurrence investigation in respect of this in accordance with SOR procedure on 19 October 2010.

106    On the morning of 19 October 2010 Mr Delahay made Mr Lidbury aware of the two, separate QL3 which had been lodged in respect of aircraft, registration number VH-QOD. Mr Delahay advised Mr Lidbury that the licensed aircraft maintenance engineer who prepared the 18 October 2010 QL3 had used a screwdriver to lever open the locked door latch. That advice does not, of course, prove that this is what occurred but it accords with the substance of the contemporaneous entry made by Mr Kuhanez on the QL3 concerned. That entry is evidence of what occurred. What Mr Lidbury was told is in any event relevant in terms of the information base against which he came to decide to take particular action against the LAME employees. Messrs Delahay and Lidbury were each of the view and agreed with each other that what had been noted in respect of the door latch was a very unusual defect. Mr Lidbury referred the matter to the QantasLink Engineering Department for investigation. At the time, he and Mr Delahay were each of the view that the door latch on aircraft VH-QOD must have been excessively worn. They therefore determined in the course of their discussion on the morning of 19 October 2010 that there was a need for more replacement door latches to be held in the Brisbane Airport maintenance facility in case a similar defect was detected on other Dash 8 aircraft. They also determined that the fitting of a new door lock would be an appropriate remedial action to “close off” the QL3 in question and thus allow aircraft VH-QOD to return to service. Neither Mr Lidbury nor Mr Delahay considered that the reported lock defect constituted an airworthiness issue.

107    As 19 October 2010 drew to a close six further QL3 were prepared in respect of six different QantasLink Dash 8 aircraft then located at Brisbane Airport. The table below summarises the respective aircraft concerned, the name of the licensed aircraft maintenance engineer who raised the QL3 in respect of that aircraft, the time when the QL3 was raised and the nature of the defect entered on that QL3.

108    The shift on which the LAME employees were working on 19 October 2010 ended at midnight. There was no shift of licensed aircraft maintenance engineers scheduled to commence immediately thereafter. The six Dash 8 aircraft listed above were all bar one (see Mr Lee-Horn’s statutory declaration of 9 November 2010) of the QantasLink aircraft of that type then parked overnight at Brisbane Airport. The effect of the “open” QL3 forms in respect of these aircraft meant that none of the six could lawfully be flown unless and until the form was “closed” by a suitable resolution measure. In effect, the LAME employees had, by their actions on the evening of 19 October, grounded almost the entire fleet of Dash 8 aircraft scheduled to operate QantasLink services from Brisbane Airport on the morning of 20 October 2010.

109    Of course, the issue in this proceeding is not what were the intentions of the LAME employees but rather whether the ALAEA has proved the elements of its claim against Sunstate for the imposition of civil penalties and related relief and whether Sunstate has discharged its onus of proving that its alleged actions were not taken by reason of the exercise or the proposed exercise of the alleged workplace rights by the LAME employees. This necessary focus acknowledged, that does not mean, in the industrial circumstances of this case, that it is desirable to confine attention to whether each party has discharged the onus of proof which falls on it.

110    None of the LAME employees was tasked to undertake any scheduled maintenance with respect either to the cockpit door or the cockpit door lock on the evening of 19 October 2010. As part of the standard practice within QantasLink in respect of a Dash 8 aircraft overnighting at Brisbane Airport, each LAME employee was tasked to undertake what was known as a “ramp service check” on such an aircraft that evening.

111    Mr Lee-Horn stated and I find that a “ramp service check” is a visual inspection of an aircraft for external damage, integrity of panels and system pressure/fluid readings. It is a “walk around” check which usually takes about 15 to 20 minutes, including the completion of related paperwork. Such a check is designed to detect any obvious damage or obvious defects, for example, bird strike damage, oil leaks, hydraulic leaks, defective lighting and the like. The only aspect of a ramp service check which requires the inspection of the interior of an aircraft is a check of the normal and emergency lighting within the cabin. Mr Lidbury was well aware of what a ramp service check usually entailed.

112    The effective grounding of the six Dash 8 aircraft on the evening of 19 October 2010 and their scheduled flight operations the following morning necessitated urgent, resolution action by QantasLink managerial maintenance staff. Messrs Hill and Lee-Horn were then at home. Soon after midnight, the groundings were reported to Mr Hill who in turn telephoned Mr Lee-Horn, waking him. Each travelled to the QantasLink maintenance facility in the early hours of the morning to investigate the reasons for the grounding and to address the reported defects. Between 01:30 and 09:00 shims were manufactured and installed in accordance with the engineering order which had earlier been formulated. Mr Delahay was brought in and from 04:30 on 20 October 2010 worked on the resolution of the reported defects. So, too, did Mr Hill, Mr Lee-Horn and a Mr D Casey. Progressively in the early hours of 20 October 2010 Messrs Hill and Casey were able, as a result of the resolution actions to “close off” the six QL3 forms in question, thereby enabling the Dash 8 aircraft concerned lawfully to be flown.

113    The defects which the LAME employees reported on the QL3 forms completed on the evening of 19 October 2010 were neither the result of a fault noticed in the course of scheduled maintenance nor the result of a random, incidental observation in the course of a routine ramp service check. It is clear to me not only on the balance of probabilities but for that matter to the point of demonstration and beyond any reasonable doubt that each of the LAME employees deliberately sought to find these so called defects on the aircraft concerned that evening.

114    In making that finding, I have expressly taken into account the explanations which the LAME employees gave in the course of the investigation which Sunstate conducted in the aftermath of the events of 19 October 2010 as well as in the affidavits which they later made and filed and their oral evidence in this proceeding.

115    As I have remarked above, the potential for the Dash 8 cockpit door to be opened by way of distortion of the surrounding bulkhead was known but by no means universally known within QantasLink staff prior to September 2010. A reactive modification programme for the Dash 8 aircraft fleet was in the course of preparation well before 19 October.

116    It is not certain on the evidence as to precisely when after the start of September 2010 knowledge of the cockpit door issue came to the knowledge of each of the LAME employees. What is certain is that Mr Pengelly was aware of it by 16 October 2010 when he came to complete the QL3 describing this phenomenon. He said that he discovered it by leaning on the toilet wall of the aircraft and noticing that the cockpit door opened. By then Captain Schryver and later Captain Reitano had each submitted an SOR in respect of this same phenomenon and, as I have observed, remedial action was in train. In these circumstances, it is a most unlikely coincidence that Mr Pengelly chanced to discover this same phenomenon on 16 October 2010. Also to be taken into account in weighing up whether Mr Pengelly discovered the phenomenon by chance is the evidence, including that of Mr Pengelly himself, that licensed aircraft maintenance engineers routinely talk amongst themselves in the workplace about topical maintenance issues. I consider it inherently likely that skilled tradesmen rostered together would do this. When he was asked on 20 October 2010 by a Mr Rose about why the cockpit door locks had been inspected Mr Kuhanez mentioned that pilots had raised the issue and that Sunstate had not done anything about it. There was also evidence that licensed aircraft maintenance engineers rostered on a particular shift caught a bus from the maintenance facility together at the end of a shift. It was Mr Posavac who “closed off” on 17 October 2010 the QL3 prepared by Mr Pengelly in respect of the cockpit door issue on 16 October. Moreover and tellingly, when Mr Posavac “closed off” this particular QL3 he did so by fitting shims to the cockpit door striker plate in accordance with the AutoAvia designed Engineering Order requirements. In other words, Mr Posavac must well have known no later than 17 October 2010 not only of the phenomenon as to how the cockpit door might be opened but also that there was already in place a QantasLink initiated, fully approved modification to address this issue. Mr Kuhanez reported a like issue on 18 October 2010. He did this after he was told by Mr Posavac that he had repaired just such an issue the previous day.

117    On 17 October Messrs Pengelly and Fuller were rostered on and worked the day shift while Messrs Kuhanez, Posavac and Etherton were rostered on and worked the evening shift (which finished at midnight). In his initial affidavit, Mr Fuller stated that Mr Pengelly had demonstrated to him how the locked cockpit door on the Dash 8 could be opened by flexing the adjacent (toilet) wall. That Mr Pengelly had such knowledge by then accords with his having completed the QL3 on that subject the previous day. Mr Fuller also stated in his initial affidavit that Mr Pengelly had also demonstrated to him how the cockpit door lock could be opened by pushing a key into the lock and levering it open. In his later affidavit filed in June 2011 in this proceeding Mr Fuller stated that Mr Pengelly only came to show him how to open the lock in this way on 20 or 21 October, ie after the night of 19 October 2010. He retracted this in his oral evidence. Mr Fuller’s first and more contemporaneous account is inherently the more likely.

118    Of the LAME employees, it is more likely than not that Mr Pengelly, Mr Posavac, Mr Kuhanez and Mr Fuller were each aware of the cockpit door phenomenon prior to 19 October 2010. They did not just chance upon the issue on the evening of 19 October 2010 and thereby, so it was submitted on behalf of the ALAEA, then and there become duty bound to report the same as a defect on a QL3. Further, notwithstanding that there was an obvious widespread knowledge about the cockpit door issue and the cockpit door lock issue by 18 October 2010 there had been no concerted action amongst the LAME employees or any of them to address the same with their supervisors on their initiative by that time. This was so notwithstanding, for example, Mr Fuller’s statement that a licensed aircraft maintenance engineer in possession of such knowledge and not acting on it would be in breach of his duty as a member of that trade.

119    In his first affidavit, Mr Etherton stated that, on the evening of 19 October 2010 and having performed maintenance on another aircraft, he returned to the tarmac office in the maintenance facility at Brisbane Airport at about 23:45. He stated that, upon returning there, he was asked by Mr Posavac to go with him to aircraft VH-TQM to look at the cockpit door. Mr Etherton further stated that Messrs Pengelly and Kuhanez also went into the cabin of that aircraft. According to Mr Etherton, Mr Posavac then demonstrated how to open the cockpit door lock using either an ID card or an ice cream (paddle pop) stick. Mr Etherton claimed that he then asked what the other aircraft were like and was told by one of the other LAME employees present that a number of other aircraft were also unserviceable because of this defect but that aircraft VH-SCE had not yet been inspected. It was because of this, so he said, that, on his own initiative, he then went over to aircraft VH-SCE. According to him, once in the cabin he inspected the cockpit door lock and found that it was easy to manipulate and open the cockpit door lock using his “Leatherman” multi-purpose tool.

120    A notable feature of Mr Etherton’s oral evidence was that his demonstration of how he did this differed from his earlier indication as to the entry point Mr Posavac had showed him. Mr Etherton also stated that he found he was able to open the cockpit door by pressing against the toilet door frame. In the course of the QantasLink investigation which followed 19 October 2010 events Mr Etherton stated that, once these issues were discovered, discussion took place amongst some of the licensed maintenance engineers on that shift about their being insufficient time left during the shift to fit shims so as to address the toilet door flexing. On this version of events, this indicates an awareness then of the existence of an approved resolution method as specified in the Engineering Order. Yet when asked in evidence as to what research, if any, was undertaken in relation to the QL3 which he completed that evening he stated that, “time constraints prevented me doing any research into the issue”. This was, to say the least, odd as the very man who asked him to go to aircraft VH-TQM and whom he said had conducted a demonstration there, Mr Posavac was the same man who had, as I have already noted, earlier adopted that approved method to close off an earlier QL3 in respect of aircraft VH-QOD on 17 October 2010. Further, in his first affidavit, Mr Etherton stated that he had assisted Mr Posavac in that task on 17 October 2010. All in all, I did not find Mr Etherton a reliable historian. What is certain, based on the contemporaneous documentation, is that he did complete a QL3 on the evening of 19 October 2010. Further, it is more likely than not that, in so doing, he was well aware before 19 October of the existence not only of a door flexing issue but also that how to resolve the same had already been settled. I also doubt that the potential for the door lock to be opened by insertion and manipulation was a revelation to him that evening.

121    As to Mr Baldock, the evidence that he gave in his first affidavit was that, in the course of the evening shift on 19 October 2010, Messrs Pengelly and Kuhanez had had a discussion with him during which Mr Pengelly told him that he had by chance discovered a problem with the Dash 8 cockpit door when he accidently lent against the toilet door wall and found that the cockpit door popped open. Mr Baldock stated that he considered this to be a serious problem because the cockpit door area of the QL3 was supposed to be able to resist forcible entry as well as gunfire and shrapnel. According to him, he, Mr Pengelly and Mr Kuhanez agreed together to look out for this problem on other Dash 8 aircraft. It was for this reason, so he stated, that, during an internal inspection of aircraft VH-QOF, he decided to examine the cockpit door and its lock. It is noteworthy, as to the lock, that Mr Baldock’s account as to what he had been told of the problem by Mr Pengelly did not include his being given any detail as to how the lock itself might be manipulated. Rather, he said that when testing the cockpit door for vulnerability to opening by the flexing of the toilet wall he noticed that the internal of the lock mechanism was visible and that this prompted him to investigate it further.

122    In contrast, in Mr Baldock’s second affidavit and in the course of his oral evidence he stated that he was informed by Mr Kuhanez that he (Kuhanez) had the previous evening (18 October 2010) found a defect with the door lock on VH-QOD. Yet in his first affidavit and for that matter in his response to a question in the course of the post-event QantasLink investigation, he made no reference to Mr Kuhanez as the source of his information as to vulnerability in the lock itself. In his second affidavit Mr Baldock stated that he only filled out the QL3 that evening after already having reported what he discovered to the shift supervisor Mr Blanch who told him to report the defects he had seen. He also stated that, before so doing, he had discussed the defects with Mr Pengelly. The differences in the accounts which he gave at various times made me regard Mr Baldock as an unreliable historian.

123    On the whole of the evidence, it seems to me much more likely than not that the LAME employees set out as a group to cause maximum disruption to Sunstate on the evening of 19 October 2010 by a concerted reporting of phenomena already by then well known to each of them. I also doubt that it was a coincidence that the QL3 in respect of these phenomena were lodged late in the shift that evening, as late in the case as two of them as just minutes prior to the close of the shift. Indeed, it seems inherently likely that Mr Kuhanez lodgement at 23:23 on Monday, 18 October 2010 of a defect entry in a QL3 in respect of Dash 8 aircraft, registration number VH-QOD, but then newly modified, was something of a rehearsal for the concerted action which followed the next evening.

124    The unreliability of the accounts given by the LAME employees was in marked contrast to the account given by Mr Lidbury both as to the actions which were taken within QantasLink following the evening of 19 October 2010 and as to why he had come to make particular decisions in respect of those particular employees.

125    On the morning of 20 October 2010 Mr Lidbury was briefed by Mr Delahay about the existence of six further aircraft with cockpit door defects. He was also contacted that day by the QantasLink engineering Manager, Mr Leben who informed him that, following his investigation of the reports submitted on 19 October, a further modification was being developed to ensure that the door lock could not be levered open by screwdrivers and the like. Mr Lidbury also related that Mr Leben said to him, “Paul, in my opinion, a person would need specialist knowledge of how the door latch operates in order to lever it open”. This statement is admissible if for no other reason than it was operative in relation to Mr Lidbury’s intentions when he came to make decisions in respect of the LAME employees. As it happens, having had the benefit of viewing not only photographs of but also a sample lock mechanism itself and various demonstrations concerning the latter during the course of oral evidence, it seems to me that the opinion expressed to Mr Lidbury was inherently accurate.

126    At about 16:30 on 20 October 2010 Mr Lidbury attended a meeting with a majority of Sunstate’s Brisbane based licensed aircraft maintenance engineers. This meeting had been arranged prior to the events of the preceding evening. Its purpose was so as to provide a briefing on the status of negotiations concerning a replacement enterprise agreement. Mr Lidbury recalls and I find that, during that meeting, several licensed aircraft maintenance engineers, including the LAME employees, made claims that the Dash 8 cockpit doors were unsafe and that QantasLink management was ignoring the issue. In the coincidence of the ongoing replacement enterprise agreement negotiations, the existence of proceedings in the industrial commission and these claims I consider that an insight is offered as to why six aircraft were grounded on the evening of 19 October 2010. No new phenomenon with respect to the Dash 8 aircraft was discovered that evening by the LAME employees, only a means of putting increased pressure on their employer. And that on a day when Sunstate had sought the relisting before the industrial commission of its application in respect of the taking of unprotected industrial action.

127    Mr Lidbury explained to the meeting that, in his opinion, the cockpit doors were fully compliant with both airworthiness and security requirements.

128    Earlier that same day proceedings in respect of Sunstate’s application resumed in the industrial commission before Commissioner Simpson. An apparently very weary Mr Delahay (the transcript discloses his being given permission to take a cup of coffee into the witness box) gave evidence as to events which had occurred the previous evening. An officer of the ALAEA, Mr Purvinas, appeared for that trade union. Sunstate was, by leave, represented by counsel and solicitors.

129    Commissioner Simpson delivered ex tempore reasons on 20 October 2010 in respect of the relisted application. In the course of those reasons he observed (paragraph 30) that, “this is a matter that would appear to me to be one where the workforce has considered recourse to unprotected industrial action as an instrument that may assist in prosecuting matters in dispute between the parties that are unresolved regarding the enterprise bargaining negotiations”. The commissioner also observed (ibid) that, though he did not make a firm finding on the subject, “it would not be unreasonable to conclude that the ALAEA had some involvement”. These observations did not, of course, bind Mr Lidbury to reach his later conclusions and to take his later actions in respect of the LAME employees. Much less do they bind me. That said and against a much more detailed body of evidence than that which was available to Commissioner Simpson, I share the conclusion which he reached in respect of the LAME employees’ motivations in respect of the actions taken on the evening of 19 October 2010. It is not necessary in this proceeding to reach any conclusion as to the involvement of the ALAEA in those actions although, having regard to the unreliability of the evidence of the LAME employees, I did not see any reason to doubt the continued aptness of this further observation made by the industrial commission.

130    In the result, the industrial commission made an order on 20 October 2010 that the ALAEA and, materially, Sunstate’s employed licensed aircraft maintenance engineers stop, not commence or recommence, not engage in or threaten to engage in any industrial action by way of refusal to perform work as directed or performing work in a manner different to which it is customarily performed or place a ban, limitation or restriction on the performance of work.

131    Present at the industrial commission proceeding to give instructions on behalf of Sunstate was QantasLink’s then industrial relations manager, Ms Lisa Thomas. In the course of an adjournment of the industrial commission hearing on 20 October 2010 she noticed Mr Purvinas and a Mr Fitzgerald (the ALAEA delegate at Sunstate’s Brisbane Airport maintenance facility) seated at the bar table looking at the screen of a lap top computer. She noticed that a video was being played of an object of some sort being used to manipulate a cockpit door lock of a Dash 8 aircraft. Later on 20 October, after the conclusion of the industrial commission hearing, Ms Thomas called Mr Lidbury to brief him on the result of the commission proceeding. She also informed him as to what she had seen on the lap top video screen.

132    The following day, 21 October 2010, Mr Lidbury received advice from Mr Rose as to a conversation which the latter had had with a number of Brisbane based licensed aircraft maintenance engineers following the meeting on 20 October 2010. Once again, the contents of this advice are admissible in terms of the information base against which Mr Lidbury chose to make his subsequent decisions concerning the LAME employees. Mr Rose expressed the view to Mr Lidbury that the licensed aircraft maintenance engineers claimed to have found another method for opening the cockpit door by using a stick or the like. He put to Mr Lidbury that the inference which he drew from the conversation was that the licensed aircraft maintenance engineers would continue to make QL3 reports in relation to cockpit doors.

133    Given the number of QL3 forms submitted within a short space of time and in light of the information given to him by Mr Rose and Ms Thomas and against the background of what he regarded as increasingly hostile enterprise agreement negotiations and ongoing unprotected industrial action Mr Lidbury determined to make further inquiries as to what had occurred on 18 and 19 October 2010. The result of these inquiries was:

(a)    no verbal instruction had been given by QantasLink maintenance managerial staff or supervisors to licensed aircraft maintenance engineers to conduct an inspection of cockpit doors on either 18 or 19 October 2010; and

(b)    the Maintenance Schedule for those days contained no such instruction in relation to aircraft in respect of which QL3 forms reporting a cockpit door defect were submitted on those days.

134    On 21 and 22 October 2010 Mr Lidbury sought advice from CASA officials (Mr Laws, Team Leader - Airworthiness, Sydney Airline Office) and Mr Jim Marcolin (Manager, Sydney Air Transport Field Office) as to whether his view about the effect of the CAA and regulations and other laws made thereunder was correct. Mr Lidbury’s view was that these did not contain any requirement that could be applied to the security (tampering with locks or door frames) of cockpit doors with the requirement for an aircraft to have a reinforced cockpit door being a security rather than a safety or airworthiness requirement. Each of these CASA officials confirmed to Mr Lidbury that his view was correct. Once again, the view of this CASA officials is in no way conclusive as to whether any of the reported defects were truly in law an airworthiness or safety issue (although as it happens I agree with their views) but it is relevant as to the basis upon which Mr Lidbury came to form his intention with respect to the taking of later action with respect to the LAME employees.

135    As a result of these initial inquiries he conducted and reports to him and based on his own knowledge and experience, which included an awareness since February 2010 about the potential for the cockpit door to be opened by “flexing” and the remedial measures commissioned, Mr Lidbury became concerned that what had occurred on the evening of 19 October 2010 was not the undertaking of usual duty by the licensed aircraft maintenance engineers but rather concerted, unprotected industrial action which might again be repeated. He voiced that concern in discussions with the QantasLink Executive Manager, Mr Kumar and Mr Allan on or about 21 October 2010. He took advice from Mr Allan and other human resources and maintenance managerial staff as to action which might be taken. The upshot was that he formed the view that there were three clear allegations which, if substantiated, could potentially amount to serious misconduct by the LAME employees namely that, by virtue of the manner in which they had reported the alleged defects (as opposed to the fact that these alleged defects had been raised), they:

(a)    had acted in a manner which was inconsistent with the way in which work was customarily performed as set out in the undertaking which the ALAEA had given to the industrial commission (Allegation 1);

(b)    had engaged in a co-ordinated pattern of behaviour which constituted unprotected industrial action intended to cause disruption to the operations of QantasLink and damage to its reputation and that of Qantas (Allegation 2); and

(c)    had engaged in serious misconduct by recording a cockpit door latch and forwarding a copy of that recording to the ALAEA (Allegation 3).

136    A sequel to this was that, after further discussion with Mr Allan, Mr Lidbury formed the view that these matters were sufficiently serious to warrant a formal investigation under clause 18(b) of the Enterprise Agreement and section 17.16 of the Qantas Standards of Conduct Policy. In turn, on 26 October 2010, Mr Allan separately notified each of Messrs Baldock, Kuhanez, Etherton and Posavac in person and by a letter dated that day which he handed to each of them that QantasLink would undertake an investigation into allegations that they had undertaken unauthorised and unnecessary detailed inspection of the Dash 8 aircraft cockpit doors and had subsequently completed a QL3 technical log inappropriately declaring that the cockpit door was unsafe. The same letter was courier delivered to Messrs Pengelly and Fuller on 26 October 2010. By that letter Sunstate directed each of the LAME employees not to attend work from 26 October 2010 until further notice. The letter advised that this standing down would be on full pay. Each LAME employee was requested to make a response to the allegations set out in the letter by 2 November 2010. The decision to take this action was made by Mr Lidbury on Mr Allan’s recommendation and was confirmed by Mr Kumar.

137    In the meantime, on 28 October 2010, inspections had been conducted at QantasLink premises in Sydney by representatives of CASA and the Office of Transport Security (OTS) in Mr Lidbury’s presence of Dash 8 aircraft both as modified in accordance with the Engineering Order and as further modified in reaction to the door lock issue (by the insertion of an anti-tamper plate). The upshot of this was further confirmation to Mr Lidbury by CASA that no airworthiness issue was involved and by OTS that it was satisfied with the modifications and further that the cockpit doors had been installed in accordance with security law requirements. Once again, these advices are not conclusive as to the matters of law entailed (although I see no error in them) but they serve to inform as to the information base against which Mr Lidbury came to make his decisions in respect of the allegations made against the LAME employees.

138    The time within which the LAME employees were required to respond to the allegations was extended and, in the result, each furnished his response to Sunstate on 18 November 2010. The response each made to factual issues took the form of an affidavit (what I have termed a first affidavit in light of a later affidavit of each filed in this proceeding). Mr Lidbury reviewed the LAME employee’s responses during December 2010. In that month he was also briefed by QantasLink’s Manager, People Relations, Ms Morgan (an immediate subordinate of Mr Allan) as to the results of investigations into the allegations which she had undertaken. In particular, in the course of her investigation Ms Morgan sought to interview each of the LAME employees. In the result she was able to interview only Messrs Kuhanez, Etherton and Posavac. These meetings occurred at Brisbane on 7 December 2010. She did however receive further written responses to questions which she sent by email from Messrs Baldock, Fuller, Pengelly, Posavac, Etherton and Kuhanez serially on 9 and 10 December 2010. The answers given both at interview and in writing formed part of the report which she made to Mr Lidbury later that month.

139    Mr Lidbury discussed Ms Morgan’s report with Ms Thomas and Mr Allan later in December and again in January 2011 when he returned from a short period of leave. In the result and adopting recommendations made to him via Ms Morgan’s report and discussion with Ms Thomas and Mr Allan he came to regard Allegations 1 and 2 as substantiated but Allegation 3 as not substantiated.

140    The explanation which he gave in his affidavit evidence in chief (paragraph 118, which he maintained under cross examination) for making his decision was this:

I considered the allegations that were substantiated to be not only serious, but also to constitute breaches of Qantas procedures and the Standards of Conduct Policy by virtue of the manner in which the inspections were conducted and the way the alleged ‘defects’ were reported. I wish to emphasise that I did not consider that the fact that the alleged ‘defects’ were raised constituted a breach of Qantas procedures. In fact, Qantas supports and encourages LAMEs in electing to perform objective inspections where there are safety or security concerns and in exercising their responsibilities to report defects in accordance with the Security Laws and Civil Aviation/Safety Laws. However I did not accept that the evidence supported the Employees’ assertions that their respective actions were based on genuine safety concerns. Rather, I considered that the evidence supported a finding that Qantas procedures had been breached because:

(a)    the operational evidence, including as confirmed by the OTS and CASA following their respective investigations, showed that the alleged ‘defects’ were security issues and not airworthiness issues therefore did not warrant the aircraft to be grounded as unserviceable;

(b)    the Employees were not authorised by Qantas procedure or any relevant laws or the Maintenance Schedule to undertake a detailed inspection of the aircraft or its components by utilising unapproved data or tools (the evidence was that they had used paddle pop sticks and screwdrivers for this purpose, neither of which constitute ‘approved maintenance data’) and further, given the finding at (a) and the number of aircraft grounded due to the same ‘defect’ in a short space of time, the inspections could not have been ‘objective’ or justified by any assertion of genuinely held safety concern;

(c)    the alleged ‘defects’ were reported in an inappropriate manner, in particular given the confirmation at (a) that the alleged ‘defects’ were not airworthiness issues; and

(d)    the sequence of events which occurred on 19 October 2010 in particular indicated a pattern of coordinated conduct which amounted to the unprecedented occurrence of 6 aircraft being rendered unserviceable due to the same non-airworthiness defect within a matter of hours;

(e)    all of these events took place in an increasingly tense industrial relations environment at a time when unprotected industrial action was also taking place and the Undertaking had and was at the time being breached; and

(f)    whilst it could not be proceed who had made the video, the fact that a video was made demonstrated to me that the LAME door issue actions were not the result of any genuine safety concern rather had a wider industrial purpose in support of an orchestrated campaign.

141    There was ample support in the material before Mr Lidbury at the time and in the evidence before me for the making of a decision that Allegations 1 and 2 were substantiated and for the reasons given in the passage from his evidence just quoted. Further, it is to be remembered that Mr Lidbury brought to the making of this decision all of his considerable accumulated aviation industry knowledge and experience. I observed him closely when he gave oral evidence. I thought at the time and still do, upon reviewing the whole of the evidence, that he was an honest witness doing his level best to explain why he had taken the decision to find Allegations 1 and 2 proved.

142    Further, I am well satisfied that the decisions that these allegations were proved and in respect of the sanctions which came to be imposed were his rather than those of Mr Kumar. In his role as Head of Operations for QantasLink Mr Lidbury in practice had two main functions - a business function and a regulatory function (his responsibilities were formally specified in Part 2.2.2 of the QantasLink Corporate Policy and Procedures Manual). In his “business” role he oversaw Safety Management Systems, Material and Logistics, Aircraft Line and Heavy Maintenance plus the engineering functions of the QantasLink business. One part of this role involved Mr Lidbury’s assistance with staff management issues such as the negotiation of new industrial agreements and the assessment of staff performance. In this part of his role he was assisted by Mr Allan and his subordinates. I have already described above Mr Lidbury’s “regulatory” role.

143    In his business role, Mr Lidbury formally reported to Mr Kumar but the reporting truly was formal. So far as the decisions taken by Sunstate in respect of the LAME employees were concerned Mr Lidbury was for all practical purposes the directing mind and will of that company. Even if, contrary to the conclusion which I have reached the particularised CA Regs could ground “workplace rights” for the purposes of the Fair Work Act, I am well satisfied that Mr Lidbury did not make the decisions in respect of the substantiation of Allegations 1 and 2 and the subsequent sanctions because the LAME employees had exercised or proposed to exercise those workplace rights. Yet further, these sanctions were certainly a reasonable, even a restrained, managerial response having regard to the findings made.

144    While the conclusions which I have reached dictate that this application must be dismissed it is desirable in the circumstances of this case and having regard to the objects of the Fair Work Act (s 3, particularly objects (a) and (f)) to conclude with these observations.

145    The trade of a licensed aircraft maintenance engineer is an honourable and responsible calling. The myriad of people who daily commute by air in, to and from Australia rely upon persons engaged in this trade faithfully to perform their duties. There is a strong public interest, evidenced by responsibilities specified in the CA Regs, in the promotion within workplaces where licensed aircraft maintenance engineers work of a culture whereby persons in this trade are encouraged to report faults in respect of aircraft. Further, the existence of such responsibilities must be recognised and not exploited by employers and unions in negotiations concerning pay and conditions.

146    The evidence establishes that the QantasLink operators, materially including Sunstate, did promote and encourage aircraft fault reporting by employed licensed aircraft maintenance engineers. It is subversive of such a culture and antithetical to the public interest for what are in reality industrial actions to be cloaked as aviation safety issues. Perhaps it was that the LAME employees felt sorely tested by the state of negotiations concerning a replacement industrial agreement. However that may be, and it is no part of my role to make any arbitral decision concerning where the merits of the underlying claims in respect of a replacement enterprise agreement lay, what occurred on the evening of 19 October 2010 were not the acts of men faithful to their trade responsibilities.

Associate:

Dated:    6 November 2012