FEDERAL COURT OF AUSTRALIA

Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32

FEDERAL COURT OF AUSTRALIA

Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32

CORRIGENDUM

1.    In paragraph 71 of the reasons for judgment replace the first sentence with the following:

“I am of opinion that it would be quite unrealistic to expect Qantas, as an employer, to be left with substantively no right or ability to require a sick employee to provide it with information, of the kind sought here, about the present and future position of a crew member who had been on extended sick leave.”

Associate:

Dated:    10 February 2014

THE COURT ORDERS THAT:

1.    The proceedings be dismissed.

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

REASONS FOR JUDGMENT

1    The Australian and International Pilots Association seeks declarations that Qantas Airways Limited contravened s 340(1)(a)(ii) of the Fair Work Act 2009 (Cth) (the Act) by taking adverse action on each of 3 December 2012 and 1 February 2013 in the form of threats to take disciplinary action against First Officer Gregory Kiernan for reasons including that Mr Kiernan had exercised a workplace right to provide a medical certificate as evidence that he was unfit for duty, being a benefit of cl 31.3.10 of the Qantas Airways Limited Flight Crew (Long Haul) Certified Agreement 2005-2006 as varied and extended by an order of the Australian Industrial Relations Commission on 13 May 2009 (EBA7v) (the agreement).

2    The Association also seeks an order that Qantas not act on any threat of disciplinary action against Mr Kiernan for refusing to provide more medical information than was required by cl 31.3.10 of the agreement. In addition, the Association seeks orders imposing penalties on Qantas pursuant to s 546 of the Act in respect of any contraventions found by the Court and that those penalties be paid to the Association.

The legislative schemes and their history

3    The Australian Industrial Relations Commission certified the original version of the agreement on 16 November 2005. That was prior to the commencement of significant amendments to the Workplace Relations Act 1996 (Cth) effected by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (the 2005 Amendments) that received Royal Assent on 14 December 2005. The 2005 Amendments included s 93N that commenced on 27 March 2006, and at that time the whole Act and its Schedules were renumbered. That section was renumbered and became s 254. I will use the renumbered section and schedule numbers in these reasons, being those that applied on 27 March 2006. That section made specific provision, for the first time, relevantly, about evidentiary requirements that an employer could require from an employee who claimed personal or sick leave. The differently worded provisions in ss 97 and 107 of the Fair Work Act have their genesis in the 2005 Amendments that introduced the former s 254 into the industrial legislative landscape.

4    Under the definitions in item 1 of Sch 7 to the Workplace Relations Act, the agreement was a pre-reform certified agreement because it had been made under the former Div 2 of Pt VIB (since Qantas was a constitutional corporation within the meaning of the former s 170LI) and certified under Div 4 Pt VIB of that Act before the 2005 Amendments. Item 6 of Sch 7 provided that certain provisions of the Act as amended by the 2005 Amendments applied to pre-reform certified agreements, but those provisions did not include the new Pt 7 that introduced s 254 and other provisions setting key minimum entitlements for employees.

5    Under item 2(1)(j) and (r) of Sch 7 the provisions of the Act in force before the 2005 Amendments relating to the Commission’s powers to vary a certified agreement continued. Those powers were exercisable, relevantly, in accordance with s 170MD(1)-(5), pursuant to s 170MD(7)(a). The Commission’s powers to vary and extend a pre-reform certified agreement were confirmed and qualified by item 2A, that was inserted into Sch 7 by the Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008 (Cth) that commenced on 28 March 2008. In essence, where the employee and the union agreed to a variation the Commission had to approve it before it became of any effect. The Commission had to be satisfied that a valid majority of employees affected had genuinely approved the variation and it would have been required to certify the agreement as varied if it were a new agreement for which the parties sought certification under the old Pt VIB. Under item 2A(2)(c), the Commission also had to be satisfied that, in the case of a variation, the agreement as varied would not result, on balance, in a reduction in the overall terms and conditions of employment of the employees bound by the agreement under any law that the Commission considered relevant.

6    On 13 May 2009, the Commission made an order varying and extending the agreement so that it was in the form that governed the present dispute. There is no evidence whether, and if so when, any amendment was made to cl 31. Thus, the subsequent variations of the agreement that the Commission approved, including that made on 13 May 2009, did not attract the operation of the 2005 Amendments because the agreement, as varied, remained a pre-reform certified agreement for the purposes of item 30 of Sch 7. There is no issue that the agreement as varied was anything other than valid and binding.

7    On 1 July 2009, the Workplace Relations Act was repealed by the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth) (the Transitional Act). The parties agreed that the agreement was a transitional instrument being a “collective agreement based transitional agreement” under item 2(5)(c) of Pt 2 of Sch 3 of that Act and remained in force as if the repeal of the previous Act had not occurred (item 2(1) of Pt 2 of Sch 3).

8    Under s 27(2)(c) of the Fair Work Act, the Parliament stated that it was not intended to exclude the operation of laws of States or Territories with respect to occupational health and safety. The Workplace Relations Act had provided similarly in s 16(3)(c). It is necessary to consider aspects of both of those Acts and how they applied at different times.

9    Relevantly, cl 31 of the agreement dealt with personal/carers leave. That topic had been defined in s 244 of the Workplace Relations Act as, relevantly, either paid sick leave taken by an employee because of the personal illness or injury of the employee or paid or unpaid carer’s leave taken by an employee in certain circumstances. Division 5 of Pt 7 of the Workplace Relations Act provided for personal leave. The purpose of Pt 7 was to set out key minimum entitlements of employment including those in Div 5 concerning personal leave and those were defined as the “Australian Fair Pay and Condition Standard” (the old Standard) (s 171).

10    Under item 24(1)(d) of Pt 5 of Sch 3 of the Transitional Act, s 107(5) of the Fair Work Act applied to a transitional instrument such as the agreement. And, item 23(1) of Pt 5 of Sch 3 provided that a term of a transitional agreement was of no effect to the extent that it was detrimental to an employee in any respect when compared to his or her entitlement under the new Standard. However, item 23(2) of Pt 5 of Sch 3 provided that item 23(1) did not affect a term of a transitional instrument that was permitted by a provision of the new Standard as it had effect under item 24. Importantly, item 30 in Sch 7 provided that the old Standard, and accordingly s 254, did not apply to an employee if that employee’s employment were subject to a pre-reform certified agreement. However, I have also set out the provisions introduced by the 2005 Amendments to give a context to the provisions now in the Fair Work Act.

11    The old Standard prevailed over any workplace agreement or contract of employment that operated in relation to an employee to the extent to which, in a particular respect, the old Standard provided a more favourable outcome for the employee (s 172(2)). Under s 253 of the Workplace Relations Act an employee had to give his or her employer notice in accordance with that section to be entitled to sick leave during a period in which the employee was or would be absent because of personal illness or injury of the employee. An employer could require an employee to give the employer documentary evidence in relation to a period of sick leave taken, or to be taken, by the employee pursuant to s 254(1). In such a case, s 254(2) provided that:

“[Employee must give required document to employer to be entitled to sick leave in the following circumstances]

To be entitled to sick leave during the period, the employee must, in accordance with this section, give the employer a document (the required document) of whichever of the following types applies:

(a)    If it is reasonably practicable to do so – a medical certificate from a registered health practitioner;

(b)    If it is not reasonably practicable for the employee to give the employer a medical certificate – a statutory declaration made by the employee.” (original emphasis)

12    The employee had to provide the “required document” to the employer as soon as reasonably practicable and s 254(4) stipulated that such a document had to include a statement to the effect, if it were a medical certificate, that in the practitioner’s opinion, the employee was, is or would be unfit for work during the period because of a personal injury or illness and, if it were a statutory declaration, it had to state that the employee was, is or would be unfit for work during that period because of a personal illness or injury.

13    Under the Fair Work Act, National Employment Standards (the new Standard) were created including, with respect to personal/carer’s leave and compassionate leave in Div 7 of Ch 2 (s 61). Relevantly, under the Fair Work Act an employee may take paid personal leave if it were taken because the employee was not fit for work because of a personal illness or injury affecting him or her (s 97(a)). An employee had to give his or her employer notice of the taking of leave and the employer had the right to require the employee to give the employer evidence “that would satisfy a reasonable person” that, in the case of paid personal leave, it was taken for a reason specified in s 97 (s 107(3)(a)). Under s 107(5), a modern award or enterprise agreement could include terms relating to the kind of evidence that an employee had to provide an employer in order to be entitled to paid personal leave.

14    Under s 340(1)(a)(i) of the Fair Work Act, a person was prohibited from taking “adverse action” against another person because the other person had a workplace right. A person had a “workplace right” if he or she “is entitled to the benefit of a … workplace instrument” (s 341(1)(a)) (being an instrument made under or recognised by a workplace law that concerned relations as between employers and employees) (s 12). The taking of adverse action was defined in s 342(1), relevantly, as an employer altering the position of the employee to the employee’s prejudice if the employer:

    injured the employee in his or her employment (item 1(b)); or

    altered the position of the employee to the employee’s prejudice (item 1(c)).

15    If an application in relation to a contravention of, relevantly, s 340 alleged that a person took or was taking action for a particular reason or with a particular intent and the taking of that action for that reason with that intent would constitute a contravention of Pt 3, s 361(1) provided for a presumption in those proceedings that the action was, or was being taken, for that reason or with that intent unless the person proved otherwise. Under s 360, for the purposes of Pt 3, “a person takes action for a particular reason if the reasons for the action include that reason”.

16    The Work Health and Safety Act 2011 (NSW) and its analogues prescribed significant and onerous obligations on employers with respect to the health and safety of their employees. That Act also created co-operative duties for the employees. Relevantly, ss 19 and 28 provided:

“19    Primary duty of care

(1)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of:

(a)    workers engaged, or caused to be engaged by the person, and

(b)    workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking.

(2)    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

…

28    Duties of workers

While at work, a worker must:

(a)    take reasonable care for his or her own health and safety, and

(b)    take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons, and

(c)    comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act, and

(d)    co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.”

The provisions of the agreement

17    The agreement, including schedules and annexures, was over 500 pages long. It dealt with, among other matters, the allocation or posting of a flight crew member to places other than Sydney (cl 15), the allocation of flight crew members to particular types of aircraft in Qantas’ fleet (cl 16), conditions for appointment of supervisory and training staff (that related to overall availability of flight crew members for a future bid (i.e. 56 day) period (cl 17), re-employment after a crew member’s services had been terminated following CASA’s cancellation or non-renewal of his or her licence by the Civil Aviation Safety Authority (CASA) (cl 22), scheduling and hours of work (that required, among many other matters in 100 pages of text, Qantas to take account of whether a flight crew member was grounded because of personal illness, in preparing its rosters for the forthcoming 56 day period (cl 27 esp cl 27.22), leave entitlements (cll 28-32) including cl 31 dealing with personal/carer’s leave, travelling and other allowances (cl 33-36), and training (that would lead to a flight crew member not being available for some or all of the forthcoming 56 day period) (cl 37).

18    Relevantly, cl 31 was headed “Personal/Carer’s Leave”. The clause applied to a flight crew member who was absent from duty for, among other reasons, personal illness or injury, which was defined as “sick leave” (cl 31.1.1). Next, cl 31.2 created entitlements for a flight crew member to particular amounts of paid sick leave. Sick leave entitlements were made cumulative up to a total maximum credit of 365 days (cl 31.3.1). Where a flight crew member had exhausted his or her accumulated sick leave entitlement and additional leave entitlement of half pay, he or she “may be allowed further leave without pay subject to the production of a medical certificate or other evidence to the Company’s satisfaction of unfitness for duty” (cl 31.3.6). Critically, cll 31.3.7 and 31.3.10 provided:

“31.3.7        Notifying the Company of illness

A flight crew member is required to notify the Company immediately upon becoming ill and will, as far as possible, state the nature of the illness and the estimated duration of absence.

…

31.1.10        When a medical certificate is required

(d)    Before being required to produce a medical certificate or other evidence of unfitness for duty, a flight crew member is entitled to a maximum of four occasions or seven days of sick leave commencing from 20 August in each year. However, if a flight crew member reports sick on the same day that he or she is contacted for duty or on the following day, the Company may require the flight crew member to produce a medical certificate or other evidence of unfitness for duty.

(e)    Any patterns affected by non-certificated sick leave will be unpaid other than as provided in 31.3.10(a).” (emphasis added)

19    The parties were unable to provide any explanation as to why only subcll (d) and (e) were now part of cl 31.3.10 or what the provisions in cl 31.3.10(a) were or whether the mismatched letters were typographical errors. In cl 7 “medical certificate” was defined as meaning a certificate signed by a registered medical practitioner, and a “pattern” as the planned itinerary of a trip.

Background

20    The agreement was the industrial award that at all relevant times regulated the industrial relationship between Qantas and the Association and flight crew members such as Mr Kiernan. On 11 July 2012, Mr Kiernan’s treating doctor, Dr Colin Massie, signed a medical certificate that stated that Mr Kiernan was suffering from clinical depression and would be unfit for normal work for the next four months until 11 October 2012. Dr Massie wrote that he had also contacted CASA and requested that Mr Kiernan’s licence be suspended until his condition stabilised.

21    On about 10 October 2012, Dr Massie wrote a further medical certificate that stated that Mr Kiernan “is suffering a medical condition and will be unfit for normal work” up to 10 January 2013. Qantas’ Capt Ossie Miller, the fleet captain of its Boeing 747 fleet, of which Mr Kiernan was a member, wrote to him on 19 November 2012 expressing regret for his being unwell and hoped for his recovery. Capt Miller wrote that given Mr Kiernan’s indication that he would remain unfit for a considerable period:

“you are required to provide a written report from your treating doctor. This report should clearly indicate your diagnosis, prognosis, capacity to return to your pre-injury duties and the anticipated time frame.”

22    Capt Miller also required Mr Kiernan to attend a meeting on 7 December 2012 to discuss the content of the report, how Qantas could assist him and the options available.

23    On 28 November 2012, Sarah McMillan, one of the Association’s in-house lawyers, wrote to Capt Miller in reference to his recent letters to Qantas long haul pilots who had exhausted their sick leave entitlements and attached a redacted copy of Capt Miller’s letter of 19 November 2012 to Mr Kiernan that deleted his personal details and the time of the proposed meeting. The Association acknowledged that Qantas had a legitimate expectation of being able to require its employees to submit to medical examinations in order to establish their capacity to safely return to work but observed that, based on Capt Miller’s letter, that was not the stage of the process that had yet been reached. The Association expressed concern that the privacy of its members’ medical conditions was not being reasonably protected. It said that for those reasons it had advised its members to provide their treating doctors with a limited authority to disclose personal information to doctors employed by Qantas Medical Services on condition that the doctors were satisfied that Qantas Medical Services would not divulge the precise nature of the medical condition to any employees or agents of Qantas without the members’ further written consent.

24    Ms McMillan had telephone conversations with each of Capt Miller and another of his colleagues, Brad Gilchrest, Qantas’ principal advisor B747/B767, on 28 and 29 November 2012 in which she asserted that there was no lawful basis on which Qantas could require an employee to provide a medical report as requested in the letter of 19 November 2012. In a subsequent letter dated 21 December 2012, Ms McMillan said that the basis on which those discussions had taken place was that the employees were entitled to take personal leave due to personal illness, they still had a significant balance of accrued personal leave and that they had already complied “with the evidentiary requirement set out in clauses 31.3.7 and 31.3.10 of the agreement and s 107 of the Fair Work Act”.

25    Capt Miller wrote to the Association on 30 November 2012 but did not refer to any discussions. He said that Qantas did not accept that the position adopted by the Association was correct or appropriate. He observed that some of the employees had not worked as flight crew for Qantas for periods well in excess of 12 months and that the company had limited information in relation of the nature of illness and when, if ever, the employees would be able to return to work. He asserted that in those circumstances it was both lawful and reasonable for Qantas to require the pilots to provide medical reports. He said that it had again written to those pilots who had failed to comply with the direction and directed them to provide the medical report from their treating doctors, adding:

“Should an employee fail or refuse to follow this second direction, then it is likely that such failure or refusal will result in disciplinary action being taken against the employee.” (emphasis added)

Capt Miller wrote that Qantas was fully aware of the possible sensitivity of the medical reports and that access would be limited to appropriate Qantas staff management.

26    On 30 November 2012, Mr Kiernan responded in an email to Capt Miller’s letter of 19 November and the discussion with Mr Gilchrest that had occurred on 29 November 2012. Mr Kiernan said that it was his intention to return to work when fit to do so and that he was currently working with his doctor to achieve that. He said that he had provided Mr Gilchrest with a medical certificate that lasted until 11 January 2013 and inquired whether he was still required to attend the meeting on 7 December 2012.

27    On 3 December 2012, Capt Miller responded to Mr Kiernan referring to his letter of 19 November 2012 and its requirement for a medical report and attendance at the meeting. This letter is the first contravention complained of. He also referred to the letter dated 28 November 2012 from the Association, attaching a copy of his response of 30 November 2012. He wrote:

“If you have not yet taken steps to obtain a report from your treating doctor as set out in my previous letter, then you are directed to do so without further delay. You are directed to provide the report to me on or before 10 December 2012.

Please be aware that a further failure to provide a medical report and/or attend the meeting may lead to disciplinary action being taken against you.” (emphasis added)

28    On 3 December 2012, the Association wrote to Capt Miller in response to his letter of 30 November 2012, stating that it believed that he may have misunderstood what the Association had said. The Association reiterated that it was lawful and reasonable for Qantas to direct its employees to provide medical reports when they had been absent from work due to illness or injury for an extended period of time. The letter added: “However, in doing so, the Company must respect our members’ privacy.” The letter then reiterated that the reports would be provided to doctors employed by Qantas Medical Services.

29    On 4 December 2012, the Association wrote to Capt Miller giving notice of a dispute under the terms of the agreement in respect of three of its members, one of whom was Mr Kiernan. The letter stated that the Association disputed Qantas’ power to demand to know “with precision the type of illness our members (including F/O Kiernan) are suffering from”. It then set out the provisions of cl 31.3.7. The letter went on to say that the Association accepted that it was reasonable for Qantas to make enquiries regarding its members’ health in circumstances where the particular member had exhausted leave entitlements. On the next day the Association lodged an application with Fair Work Australia to deal with a dispute in accordance with the dispute settlement procedure. That application identified, relevantly, cl 31.3.7 as the clause in the agreement to which the dispute related. It made no mention of cl 31.3.10.

30    On 14 December 2012, Capt Miller wrote again to Mr Kiernan referring to his previous correspondence and the requirement to provide a report from his treating doctor together with the discussion that Qantas had with the Association. The letter went on to say:

“You have been unable to fulfil the inherent requirements of your role and have been absent from work for more than 149 days. The information you have already provided indicates that you are suffering from a medical illness. However I have little other information in relation to the expected duration of your absence and when, if ever, you will be able to safely return to work.

I am aware that there may be some sensitivities in disclosing the specifics of your diagnosis at this time. Qantas is continuing to discuss this with AIPA. In the meantime, you are required to provide me with a written report from your treating doctor by no later than Wednesday 9th January 2013 that addresses the following:

•    your current ability to safely carry out the requirements of your role as a Pilot;

•    what job functions are affected by your current condition;

•    your ability to return to work on restricted duties and a timeframe during which that would be possible;

•    the prognosis and likely timeframe for a return to full duties;

•    what, if any, reasonable accommodations could be made to enable a return to work; and

•    are there any other issues that may affect your ability to safely return to full duties.” (emphasis added)

31    On 21 December 2012, the Association, through Ms McMillan, wrote again to Capt Miller concerning Mr Kiernan, noting that he had “only been absent for work for ‘more than 149 days’ and has approximately 129 days of accrued personal leave” (emphasis in original). The letter then referred to what Ms McMillan asserted had been said in the conversations she had had with Capt Miller and Mr Gilchrest on 28 and 29 November 2012. The letter then asserted that the Association affirmed that Mr Kiernan had complied with every lawful direction Qantas had issued to him by supplying it with a medical certificate pursuant to cl 31.3.10. (This was the first mention of that clause in any correspondence.) The Association asserted that it was not aware of any legislative or common law obligation for its member to provide Qantas with any further evidence of his unfitness for duty in addition to the medical certificate he had provided and asked for details of the authorities upon which Qantas relied. The letter also referred, for the first time, to the requirements of s 107 of the Fair Work Act, saying that in the absence of any lawful reasoning to the contrary, the evidentiary requirements of s 107 and cll 31.3.7 and 31.3.10 were applicable to Mr Kiernan and to every other pilot absent from work on pay and personal leave.

32    On 8 January 2013, Mr Kiernan emailed Capt Miller with a further medical certificate from Dr Massie certifying his suffering a medical condition rendering him unfit for normal work between 28 December 2012 and 28 March 2013.

33    On 14 January 2013, Capt Miller wrote to Mr Kiernan referring to his letter of 14 December 2012 and Mr Kiernan’s email of 8 January 2013. Capt Miller reiterated his directions to provide a report as set out in his letter of 14 December 2012 by 21 January 2013. He reminded Mr Kiernan that the direction was both lawful and reasonable and that a failure to provide it “may lead to disciplinary action being taken against you”.

34    On the same day, Capt Miller wrote to the Association referring to its letters of 19 and 21 December 2012. Capt Miller wrote, with respect to Mr Kiernan, that should he:

“refuse or otherwise fail to provide the report as required, then this will be a very serious development that could expose FO Kiernan to disciplinary action. FO Kiernan has been advised of Qantas’ position accordingly.”

35    On 23 January 2013, Qantas’ solicitors wrote to the Association in response to its latest correspondence from its in-house counsel. The letter concluded by saying that since Mr Kiernan had not complied with Capt Miller’s requirement to provide a medical report made in the letter of 14 January 2013, “Qantas will now be treating this as a disciplinary matter and will be writing to FO Kiernan shortly in this respect”.

36    On 1 February 2013, Capt Miller wrote to Mr Kiernan noting that he had been absent from work for more than 198 days and that that absence was not because of a work-related injury or illness. This letter is the second contravention complained of. The letter recited the requirements made in his letters of 19 November, 3 December and 14 December 2012 for Mr Kiernan to provide a report. The letter continued:

“The intended purpose of obtaining a medical report from your treating doctor and having a meeting with you was to allow the Company’s operational management to have a proper understanding of issues that directly impact on your employment such as the nature of your illness, your prognosis, the expected duration of any further absence from work and the likelihood that you will be able to safely return to work and perform the inherent requirements of your role in a reasonable timeframe. It is necessary for Qantas operational management to have this information to meet a range of obligations, including in relation to safety and to appropriately manage long term absence from the workplace and the costs and risks to the business associated with such absences.” (emphasis added)

Capt Miller went on to refer to the further direction given on 14 January 2013 for a further medical report and the indication that disciplinary action might follow. He said that Mr Kiernan had been directed four times to provide a medical report from his treating doctor and had been advised that failure to do so may result in disciplinary action. Capt Miller asserted that failure to comply with lawful and reasonable directions to provide relevant medical information to Qantas’ operational management constituted serious misconduct and that Qantas was considering disciplinary action against him that may include termination of his employment. Capt Miller continued:

“Before making a decision in relation to any disciplinary action I ask that you provide a written response as to why disciplinary action should not be taken against you including, why your employment should not be terminated if Qantas was to determine that termination of employment was the appropriate disciplinary outcome.” (emphasis added)

The letter gave Mr Kiernan three weeks to respond.

37    The Association commenced these proceedings on 19 February 2013. In the meantime, Mr Kiernan has remained on sick leave and Dr Massie has continued to provide medical reports that simply asserted that his patient “is suffering from a medical condition and will be unfit for normal work” for the stated periods. Shortly before the hearing, Mr Kiernan wrote to Capt Miller informing him that he would retire from his employment due to ill health effective on 24 January 2014.

38    On 15 November 2013, I declined to allow the Association to discontinue the proceedings. That was because Qantas opposed it doing so. Qantas contended that there was a real dispute, among other things, as to the proper construction of the agreement and the obligations which the parties and Qantas’ employees had in relation to this issue.

Capt Miller’s evidence

39    Capt Miller had been Qantas’ Boeing 747 fleet captain since March 2010. He gave unchallenged evidence. In his role as a fleet captain he was responsible for managing the airline’s entire Boeing 747 fleet of aircraft as well as the flight crew necessary to man them. He had approximately 530 long haul pilots reporting to him.

40    In his affidavit, Capt Miller said that he sent his letter dated 19 November 2012 to Mr Kiernan because, as fleet captain, he considered that it was important to better understand Mr Kiernan’s diagnosis, prognosis, capacity to work and anticipated timeframe of such a return to work. He said that Qantas did not have sufficient information in relation to those matters and that, other than Mr Kiernan’s first medical certificate, none of the subsequent certificates provided any detail in relation to Mr Kiernan’s condition. Each later certificate was in an identical format for a three or so month period. He said that a report with the kind of information he requested would assist him in determining, first, whether Mr Kiernan would be considering returning to work in a full time or part-time capacity and what, if any, adjustments Qantas might be required to make in its business and rostering arrangements to assist that. He said that this was an extremely important consideration for him in managing the Boeing 747 fleet roster on a day-to-day operational basis. This was particularly so if Mr Kiernan would require some flexibility in his working arrangements that would necessitate extensive reorganisation or management of the fleet roster. He also said that the requested report would allow him to understand the likelihood of Mr Kiernan’s return to work, time frame and when that might occur.

41    Capt Miller explained that planning a roster cycle required balancing various different elements, including the number of pilots required to fulfil the flight routes, the maximum and minimum hours per roster cycle set by, in the first place, the agreement and, in the second, its replacement in May 2013 by a workplace determination under the Fair Work Act. He said that Qantas required that there be reserve pilots available to cover late additional flying and daily standby duties as well as simulator support duties that arise during a roster period. Rosters are planned up to 10 weeks in advance.

42    In addition, Capt Miller said there are operational issues that must be considered that related to critical dates for the setting of a roster. He said that if a long term sick employee received a clearance from CASA unexpectedly after the date that Qantas had nominated for the number of pilots needed in a bid period or roster cycle (i.e. the forthcoming 56 day period contemplated in the agreement), the company would have surplus pilots available in its workforce over the course of that bid period at significant cost. He said that it was very important, in planning manpower allocation, to know when a pilot would return to work and any limitations on his or her capacity on when that was to occur.

43    Capt Miller said that it was also important, in the planning process for the preparation of an upcoming roster, for Qantas to know at what stage in that roster period a pilot, who was proposing to return to work, would come back and be available to commence retraining so that Qantas could make arrangements for the pilot’s inclusion in retraining activities. He explained that CASA required all pilots to have a Class One medical clearance that is generally recertified every 12 months. Pilots whose Class One medical clearance has been suspended or cancelled, for reasons such as a long term illness, as has happened with Mr Kiernan, had to apply for and receive recertification with CASA prior to resuming their duties. That process can take several months. He said that once a pilot had received CASA clearance, he or she needed to undergo considerable refresher training with Qantas before the pilot could return to line operations (i.e. be rostered for duty). He referred, as indicative guides to the training programs necessary for pilots to undertake when returning to work after an extended absence, to the Qantas Company Aircrew Assessment Committee familiarisation training programs. He said that there was a long lead up time to prepare a pilot, who was returning to work, for his or her resumption of normal rostering and line operations and that the organisation of necessary training programs also required significant amounts of time and effort. He said that full flight simulator training for pilots also required substantial co-ordination, time and expense. He said that courses were planned well in advance and there were limited places both for simulators and ground training. All flight simulator exercises required two pilots as the minimum crew and, with good planning, those exercises could be optimised to avoid unnecessary costs. He said that, accordingly, planning a pilot’s return to work required significant operational planning in advance of his or her return date.

Issues

44    There are three substantive questions in the proceedings. First, did Mr Kiernan have a workplace right under cl 31.3.10 to provide, at his election, a medical certificate when required to produce a medical certificate or other evidence of unfitness for duty? This question involves whether Qantas was, in fact, acting under cl 31.3.10 or independently exercising its common law rights under an implied term of the contract of employment of the kind identified by Madgwick J in Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395 at 411 [67]-[70], having regard to the requirements of ss 19 and 28 of the Work Health and Safety Act. Secondly, did Qantas take adverse action against Mr Kiernan by threatening to take disciplinary action if he did not provide the medical report Qantas requested? And, thirdly, did Qantas make that threat because Mr Kiernan had exercised a workplace right?

The Association’s submissions

45    The Association argued that cl 31.3.10 created a workplace right within the meaning of s 341(1)(a) of the Fair Work Act under which flight crew members had the choice of how they would satisfy a requirement that Qantas had made under the clause. In other words, the Association contended that the first phrase in the first sentence, and or last clause in the second sentence of cl 31.3.10, conferred a right on Qantas to make a requirement of the flight crew member to produce something, and the member had the choice of whether he or she produced a medical certificate or other evidence of unfitness for duty. The Association contended that the provision of a medical certificate as evidence of unfitness for duty was a benefit to the employee because it obviated the need for the employee to provide any other evidence of unfitness for duty when the pre-conditions for proving unfitness for duty applied.

46    The Association submitted that, at the time that the Commission had certified the latest variation of the agreement on 13 May 2009, s 254 of the Workplace Relations Act had prescribed the form of documentary evidence that an employee was required to provide in order to take a period of sick leave at the time it was in operation, namely, a medical certificate, or if that was not practicable, a statutory declaration. It argued that, accordingly, Mr Kiernan had provided all that he was required to provide by giving Qantas the medical certificates in the simple form that Dr Massie had written.

47    The Association then argued that the terms of Capt Miller’s letters of 3 December 2012 and 1 February 2013 each contained a threat that he may be subjected to disciplinary action. It argued that the second of those letters was part of a commenced disciplinary process in which Mr Kiernan had been directed to show cause why he should not be subjected to disciplinary action. The Association relied on the combined operation of s 342(1) and (2), arguing that the threat to take the action of dismissing him was an injury to Mr Kiernan in his employment and or an alteration of his position to his prejudice.

48    Next, the Association argued that Qantas’ threats of 3 December 2012 and 1 February 2013 amounted to adverse action because Mr Kiernan had relied on the medical certificates as evidence that he was unfit for duty in accordance with cl 31.3.10, i.e: Qantas made each of the threats because Mr Kiernan was exercising his workplace right of relying on the medical certificates that he had provided and was justified in refusing to do more. The Association argued that Qantas had to establish that such a motivation played no part in its reasons for requiring Mr Kiernan to provide more than those medical certificates.

49    The Association also argued that there was no necessity or obligation to provide medical information in the form requested by Qantas in Mr Kiernan’s case because cl 31.3.10 covered the situation. The Association argued that, accordingly, no term should be implied at common law of the kind identified by Madgwick J in Blackadder 118 FCR at 411 [67]-[70].

50    The Association also argued that there was a comprehensive statutory framework to ensure that pilots were fit to fly under the Civil Aviation Safety Regulations 1998 (Cth). Additionally, the Association contended that the medical information of a person was private and an employer ought not have access to it without good reason and appropriate safeguards. It submitted that an employer should not be entitled to require, without good reason, an employee to meet and discuss his or her medical condition with a supervisor or human resources personnel within the employer’s organisation.

Consideration – (1) Workplace right

51    A certified agreement, like all similar instruments made under industrial laws, such as awards, must be construed in light of its industrial context, having regard to the problem at hand: Amcor Ltd v Construction, Forestry, Mining and Energy Union (2005) 222 CLR 241 at 246 [2] per Gleeson CJ and McHugh J, 258 [50] per Gummow, Hayne and Heydon JJ, 261-262 [64]-[66] per Kirby J, 282-283 [129]-[131] per Callinan J. Such an agreement is a hybrid between a contract, usually between an employer or employer organisation and a union or organisation of employees, and a piece of delegated legislation given force of law by a statutory process of approval by the Commission or a similar independent body. Ordinarily, its terms will have been arrived at through long negotiation against a background of, first, a superseded industrial instrument that made some similar and other different provisions and, secondly, legislation that in light of the experience of the last 20 or so years, is likely to have changed substantively since the superseded instrument. The instrument will regulate the industrial employment conditions of employees who, however, are not directly parties to it, although, ordinarily, their views will have been expressed about its terms.

52    So, in construing such an instrument, a court must have regard to more than the words of the text because the drafters wrote those words in the matrix of facts in which it had been negotiated in order to achieve certainty in the respects it addressed. The court will need to appreciate the industrial purpose of the agreement, and that of the particular term(s) in issue, against the industrial relations background of the employers, employees and employee organisations involved in its creation. That matrix of facts will provide the context to inform how an objective person, in the position of those in the relevant industry or sector, would understand the language in issue. Such a contextual frame of reference is essential whenever a court must resolve the meaning of words, although the weight and significance of the context can vary in differing legal situations such as statutory construction (Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 293 ALR 257 at 268-269 [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ) or the construction of a contract (Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 240 CLR 45 at 52-53 [10]-[11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.`

53    The agreement must be construed so that individual clauses, such as cl 31.3.10, are read coherently in the context of the agreement as a whole. Here, the agreement was made at a time, and addressed a contextual legislative background, in which, objectively, neither the old Standard nor the new Standard formed part of the governing Act. As I have explained, the Transitional Act expressly excluded the application of the 2005 Amendments that introduced the old Standard into the Workplace Relations Act, so that s 254 had no application to the agreement. In any event, the original agreement was made before the 2005 Amendments came into force. Therefore, I am of opinion that the 2005 Amendments do not form part of the context in which the original agreement, or the latest version certified on 13 May 2009, should be construed.

54    On the other hand, s 107(5) of the Fair Work Act and the new Standard applied to the agreement. But those provisions were facultative in this case. They allowed a term such as cl 31.3.10 to be included in the agreement. And, s 107(3) also assisted in understanding the quality of evidence that an employer could require to justify the taking of leave by reason of personal illness under s 97.

55    I do not accept the Association’s argument that s 107(3) of the Fair Work Act operated to give a pilot a choice of which of the two forms of evidence he or she would provide if Qantas made a requirement under cl 31.3.10. Clause 31 was concerned with a flight crew member’s entitlement to sick leave, how he or she initiated the claim for that leave, as well as with its justification. Thus, cl 31.3.7 required the crew member to notify Qantas immediately upon becoming ill and, so far as possible, to state the nature of the illness and the estimated duration of the employee’s absence. That would provide Qantas with initial information from the employee about what might be wrong with him or her in terms of illness and what he or she thought would be the length of time off work. Clause 31.3.10 made further provision for when and how medical certificates or other evidence of unfitness for duty could be required.

56    The structure of cl 31.3.10 is important. The introductory phrase of the first sentence was: “Before being required to produce a medical certificate or other evidence of unfitness for duty”. That preceded a right of the flight crew member to a maximum of four occasions or 7 days of sick leave without “being required” to do something to substantiate the leave. The final clause of the second sentence gave Qantas the right to require the flight crew member to produce a medical certificate or other evidence of unfitness for duty.

57    Each of the evidentiary stipulations in cl 31.3.10 qualified a right. Each was intended to protect Qantas’ interest by entitling it to require, reasonably, evidence that would satisfy it that it was obligated to pay sick leave to the flight crew member for his or her absence from work as well as for its legitimate purposes, such as rostering of flight crew. Likewise, cl 31.3.7 required the flight crew member on all occasions to inform Qantas, immediately upon becoming ill, of the nature of the illness and its estimated duration, unless, for example, he or she were unconscious or for some other reason not able to do so, whether or not he or she had to produce evidentiary material.

58    The first phrase in the first sentence of cl 31.3.10 gave Qantas, at its election, the right, reasonably, to require the flight crew member to produce to it evidence of unfitness for duty that, having regard to cl 31.3.7, and the complex nature of rostering and other forward planning contemplated by the agreement as a whole, put Qantas into the position of understanding the current nature of the illness and the estimated duration of the absence. There is a qualitative difference between the bare assertions of Mr Kiernan’s unfitness for work for a specific period of months in Dr Massie’s later medical certificates and an estimate of the duration of that unfitness. To say a person will be unfit for work for a three month period, is not to say that he or she will be fit at the end of that period or anything about the person’s anticipated condition in terms of fitness for work at that time.

59    Hence, the Association’s construction of cl 31.3.10 cannot be harmonised with the industrial context or the agreement read as a whole. No doubt Qantas had to exercise its power to require evidentiary material reasonably, as s 107(3) of the Fair Work Act also required. The Association did not assert that Qantas’ requirements of Mr Kiernan of which it complained were unreasonable. It simply said, wrongly in my opinion, that those requirements were outside Qantas’ powers under the agreement and thus contravened Mr Kiernan’s workplace rights.

60    In the present case, by November 2012, Qantas had accepted that Mr Kiernan was unfit for duty and did not require him to establish that unfitness. Nothing in cl 31.3.10 or s 107 related to providing the employer with, for example, an update of the initial estimate of the duration of absence that was a requirement of cl 31.3.7. However, the agreement was silent in respect of dealing with the concerns that Capt Miller had raised about Mr Kiernan’s diagnosis, prognosis, capacity to return to pre-injury duties and expected date of return to work. That information would assist Qantas in making arrangements, first, to cover the absence of Mr Kiernan for such time as he would be unable to perform his ordinary duties, and secondly, to prepare the lead in time and activities necessary for him to return to work, if that were going to happen.

61    In Blackadder 118 FCR at 411 [67]-[69], Madgwick J held that, because of the strict obligations imposed on an employer by earlier legislation, that was replaced by the Work Health and Safety Act, it was essential for an employer to be able to require an employee, first, where necessary, to furnish particulars and or medical evidence affirming his or her continuing fitness to undertake duties and, secondly, where there was a genuine indication of a need for it, on reasonable terms, to attend a medical examination to confirm his or her fitness. He held that a term to that effect should be implied by law into contracts of employment because it was necessary to give business efficacy to the contract and so was an incident of the relationship as explained by McHugh and Gummow JJ in Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 450. This aspect of his Honour’s decision was not referred to in the High Court’s restoration of his orders on appeal from their reversal by a Full Court of this Court: see Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221 CLR 539 reversing Ramsey Butchering Services Pty Ltd v Blackadder (2003) 127 FCR 381). His Honour continued (118 FCR at 411 [70]):

“In the light of such considerations, it should not be readily concluded that an express reference to undergoing medical examinations in the AWA [Australian Workplace Agreement] in one context was intended to indicate that that was the only context in which such an examination might be required, or that the express promise in the employment application had been, by a process of novation attributable to the parties' entering into the AWA, rendered nugatory.” (emphasis added)

62    I agree with Madgwick J’s analysis. Here, the terms of the agreement were not exhaustive of the contractual rights of Qantas and its employees in respect of when or why Qantas could require an employee to undergo a medical examination or provide it with further information in relation to his or her medical condition: see too Byrne 185 CLR at 422-423 per Brennan CJ, Dawson and Toohey JJ, and at 450-452 per McHugh and Gummow JJ. Moreover, the fact that the agreement was certified under the Workplace Relations Act by the predecessor of the Fair Work Commission and given force of law by that Act did not make it a part of the contract between Qantas and its employees: Byrne 185 CLR at 420 per Brennan CJ, Dawson and Toohey JJ, 462 per McHugh and Gummow JJ.

63    The necessity to imply a contractual right of Qantas to require its pilots to provide medical evidence of the kind it sought from Mr Kiernan and for them to attend a meeting to discuss matters concerning their conditions arises from the obligations imposed on Qantas by both the agreement itself and the Work Health and Safety Act. In a contract of employment, as in most other contracts, ordinarily, each party agrees to do all such things as are necessary on his, her or its part to be done to enable the other party to have the benefit of the contract: Mackay v Dick (1881) 6 App Cas 251 at 263 per Lord Blackburn applied by Griffith CJ in Butt v M’Donald (1896) 7 QLJ 68 at 70–71; and Mason J (with whom Barwick CJ, Gibbs, Stephen and Aickin JJ agreed) in Secured Income Real Estate (Aust) Pty Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 at 607, Byrne 185 CLR at 448-449 per McHugh and Gummow JJ.

64    An employee’s statutory, certified agreement or analogous industrial award based entitlement to take sick leave does not displace the contractual relationship in which, at some point, the employer is entitled to make its own business arrangements to adjust for the impact that the leave caused by the sickness of the employment will have on it and to address its obligations under the Work Health and Safety Act and its analogues. Here, the agreement did deal with the nature of the employee’s illness or its impact on Qantas’ organisation. And it also imposed significant obligations on Qantas to make detailed arrangements in rostering having regard to the availability of about 530 pilots for duties so that both employer and all its affected employees could plan a business timetable for operations that was essential for the proper running of the airline. Moreover, an employee’s illness can be related to an obligation imposed on the employer under the Work Health and Safety Act and its analogues. The employer must be able to obtain appropriate medical information to ascertain, first, whether its work place or some matter for which it is legally responsible under such legislation has not been a cause of the employee’s condition and, secondly, if it has, how to remedy that situation as soon as practicable.

65    Capt Miller explained that the organisation of the roster and manpower planning for the fleet generally required a significant lead-in time, the rosters being planned for up to 10 weeks in advance. Similarly, he explained that forward planning was required in order to make arrangements to enable flight crew who needed CASA clearances to remove a suspension or cancellation of their licences and to receive whatever necessary training or recertification work was necessary for that purpose. That evidence demonstrated that Mr Kiernan could not simply turn up to work one day and expect or demand that Qantas make arrangements to facilitate his immediate return to flying in circumstances where, as here, he had provided his employer with medical certificates that were substantively uninformative about any of the matters Qantas needed to know for its own operational purposes.

66    Qantas did not interfere with Mr Kiernan’s workplace rights under cl 31.3.10 by requiring more information. Qantas had respected those rights and did not challenge Mr Kiernan’s entitlement to sick leave. The situation of Qantas and Mr Kiernan in respect of the impact of his illness on Qantas was similar to that of the parties in Electronic Industries Ltd v David Jones Ltd (1954) 91 CLR 288 at 297-298. There Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ discussed a contractual situation in which a supplier of the then new product, a television set, had contracted to demonstrate it in a department store on agreed dates for a fee. In the event, the supplier could not make a television set available on the agreed dates because of a national coal strike and argued that, as a result, it was completely relieved of its obligations to hold the demonstration. Their Honours held that the contract contained the implied term that each party would do all such things as were necessary to enable the other to have the benefit of the contract. Accordingly, they held that:

“What it was reasonable for the plaintiff to demand was that within a specified time when the plaintiff's apparatus was not unreasonably committed elsewhere the defendant should name a time for the plaintiff to commence the fortnight's exhibition or demonstration and should make available its store for a reasonable period in advance of the date for the plaintiff to install its equipment and make the necessary preparations. Of course the plaintiff could not give the defendant an unreasonably short period of time or one specially inopportune to the defendant, having regard to the purposes to be served by the exhibition. All that the plaintiff was bound to do was to take reasonable measures to obtain from the defendant a time when he might enter the store for the purpose of performing his part of the contract and no doubt there were more ways than one in which the plaintiff might have acted. By any appropriate demand the plaintiff was entitled to require the defendant to make its store available to the plaintiff to perform its obligation at some proper and reasonable time. It is hardly necessary to repeat the commonplace statement that what is reasonable depends on all the circumstances including the nature and purpose of the express stipulations.” (emphasis added)

67    In my opinion, the Association misconceived the basis on which Qantas was proceeding in the way in which it approached Mr Kiernan’s and, apparently the other pilots’, positions in relation to Qantas’ requirements for further information. Qantas did not demand this information early in the course of the illness, where the continued ability of the officers to perform their ordinary duties was not in peril by their absence from flying that would require them to obtain re-certification or regain their licences either from cancellation or suspension by satisfying CASA of its requirements. The circumstances in which Qantas made its requests of Mr Kiernan occurred after his licence had been suspended and it had become apparent that there was an indefinite and uncertain nature about the duration of his sick leave and the potential for him to return to work.

68    I accept Capt Miller’s evidence. I am satisfied that the provision by Mr Kiernan of detail of the kind that he sought would enable Capt Miller and Qantas to co-operate with Mr Kiernan in arranging any return by him to work and enable Qantas to make proper plans so as to accommodate his absence as an available crew member from the fleet roster while he remained not only on sick leave, but also unable to fly because of the need for him to regain his flying certification and licence.

69    I do not accept the Association’s argument that, in the circumstances, the requirements of the Civil Aviation Safety Regulations supplanted the entitlement of Qantas to seek information of the kind and for the purposes that Capt Miller sought from Mr Kiernan. The Regulation was directed to the fitness of a pilot to fly and how that could be objectively ascertained. Capt Miller required the information for another legitimate and proper purpose for the reasons I have given. For the same reasons, I also do not accept the Association’s argument that Qantas had no good reason to seek the detail of Mr Kiernan’s medical condition and the associated information Capt Miller required. Qantas needed the information for legitimate and proper purposes.

70    The nature of the agreement itself indicated a highly complex range of interactions between Qantas and its long haul crew members covering over 400 pages of text. The agreement provided for the way in which the rostering system and other leave systems were to work.

71    I am of opinion that it would be quite unrealistic to expect Qantas to be left no ability, as an employer, information of the kind it sought her to require a sick employee to provide it with substantively no right to information about the present and future position of a crew member who had been on extended sick leave. The uninformative medical certificates, other than his first, that Dr Massie gave told Qantas nothing about how to plan for Mr Kiernan’s absence or return to work beyond his not being there for a period that might or might not be further extended. There is no suggestion in the evidence that Qantas took the action it took for any reason involving an intention to prejudice Mr Kiernan in the enjoyment of his rights to obtain and receive sick leave under cl 31 of the agreement.

72    Qantas’ requirements were reasonable requirements and were made solely for the purpose of assisting it in understanding how it would need to deal with Mr Kiernan in terms of matters to which Capt Miller’s evidence referred. Qantas required Mr Kiernan’s co-operation in order to make the operational side of the relationship work, both for Mr Kiernan and for Qantas. Mr Kiernan, no doubt at the behest of the Association, withheld that co-operation without lawful justification.

73    Although Capt Miller did not set out in terms the obligations that Qantas had under the Work Health and Safety Act and its analogues as being a factor in his reasoning, the concerns which he expressed can be seen to fit into Qantas conforming to its obligations to ensure Mr Kiernan’s health and safety while he was at work in Qantas’ business. Under s 19(2) and (3), Qantas had to ensure, as far as reasonably practicable, that the health and safety of other persons was not put at risk from work carried out as part of the conduct of its business and, as far as reasonably practical, that it provide and maintain a work environment without risks to health and safety and having safe systems at work the provision of adequate facilities for the welfare at work of workers carrying out work for the business, and the provision of training and instructional supervision necessary to protect all persons from risks to their health and safety arising from work performed. Under s 28 of that Act, a worker had to comply, so far as he or she was reasonably able, with any reasonable instruction given to him or her by Qantas to allow Qantas to comply with the Act and to co-operate with any reasonable policy or procedure of Qantas relating to health or safety in the workplace that had been notified to its workers.

74    In these respects, the need for planning to enable Mr Kiernan to return to work can be seen as part of the objective Qantas had in mind in satisfying those requirements. Similarly, pilots who were unfit or uncertified to fly planes posed a significant and obvious risk to the health and safety of other persons, including potential passengers. In addition, Qantas’ rostering arrangements were directed, among other matters, to ensuring the health and safety of all other Qantas employees affected by the roster and the airline’s passengers. The need to accommodate the absence on sick leave of skilled employees, such as flight crew members, and to plan for their future orderly return to full or part-time duties within its organisation or their cessation of employment (depending on the nature of their illness and prognosis) all bore on Qantas’ ability to fulfil its duties under s 19(2) and (3) of the Work Health and Safety Act and its analogues.

75    The agreement was written in the context of those statutory obligations. In the absence of express wording, the agreement should not be given a construction that would make its own extensive provisions for rostering employees operate to impose unnecessary constraints on Qantas’ entitlement to reasonable information from an employee on sick leave as to his or her illness, prognosis likelihood and timing of any return to work.

76    For these reasons, the proceedings must be dismissed. However, because the matter was fully argued I should also briefly express the views I have formed on the remaining two issues.

Consideration – (2) and (3) Adverse action and motivation

77    Capt Miller’s letters did no more than refer to the possibility that Mr Kiernan would be subjected to disciplinary action if he failed to provide, first, the requested medical report, and secondly, as the letter of 1 February 2013 made clear, the reasons why Qantas should not move to next stage of taking disciplinary action. An employer can communicate that, if an apparent impasse such as existed in the present case continued and the employee did not say why the employer should not do so, the employer would seek to rely on its rights by taking disciplinary action. A statement that an employer was contemplating that it might take such action in the future in the terms on which Qantas expressed its intentions here fall short of making a statement that Qantas intended to take that action come what may. There is a qualitative distinction between expressing a contemplation that something may happen in the future if a particular event or events do not occur, and asserting that the employer intends, in any event, to do something that will threaten the employee’s rights. Here, it can be seen that Qantas did not overstep the mark. I am not satisfied that Qantas made a threat of adverse action in the letters complained of by insisting that Mr Kiernan provide it with the required information or explain why Qantas should not proceed to consider whether it should initiate disciplinary action against him.

78    Qantas’ position was similar to that of a party who, though asserting a wrong view of a contract because he believes it to be correct, is nonetheless willing to perform it according to its tenor. As Stephen, Mason and Jacobs JJ said of such a party in D.T.R. Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 432:

“He may be willing to recognize his heresy once the true doctrine is enunciated or he may be willing to accept an authoritative exposition of the correct interpretation. In either event an intention to repudiate the contract could not be attributed to him.”

see too: Jones v Queensland Territory Admissions Centre Ltd (No 2) (2010) 186 FCR 22 at 54-55 [120]-[124] per Collier J.

79    Likewise, I am entirely satisfied that Capt Miller’s evidence and contemporaneous correspondence made it clear that he and Qantas had no intention, purpose or reason that involved any interference with Mr Kiernan’s rights to enjoy whatever benefits cl 31.3.10 may have conferred upon him. This is a question of fact: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at 656 [41] per French CJ and Crennan J, 675 [123], 676 [126]-[128] per Gummow and Hayne JJ, 680 [149] per Heydon J. It is not necessary to decide if the clause gave him a “benefit” beyond what it expressly provided. That was to prevent Qantas being able to require a flight crew member to provide a medical certificate or other evidence of unfitness for duty either before the member had used up the four occasions or seven days of sick leave, or he or she reported sick on the day or on the following day that he or she was contacted for duty. Accordingly, I am satisfied that Qantas did not act in the ways complained of for any proscribed reason under ss 340, 341 or 360 of the Fair Work Act.

Conclusion

80    The proceeding must be dismissed.

Associate:

Dated:    6 February 2014