Case: Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737 (2004) 138 IR 362
Outcome: followed
Clauses 45 and 46 and the related provisions of EBA6 have substantial similarities to some of the provisions with which French J was concerned in Wesfarmers Premier Coal Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (No 2) [2004] FCA 1737 (2004) 138 IR 362. At [73] - [79] , his Honour analysed Electrolux , in an effort to distil the appropriate test for determining whether a matter pertains to the relationship of employers and employees. At [96]-[103], his Honour dealt with provisions of a log of claims setting out circumstances in which employees might be absent from their duties and yet still to be paid while they attended various kinds of union meetings, including board of management meetings, discussions between management and the union, and training and education courses organised by the union. At [96]-[97], his Honour said of those provisions: They establish for the most part an entitlement to paid leave for employees who are performing certain functions with the relevant union. The hours of an employees' [sic] availability for work and the conditions under which an employee may be absent from that work and whether or not he or she can be paid during that absence, in my opinion, lie at the heart of the employer-employee relationship. They affect employer and employee in their capacities as such. It is no answer to that proposition to say that these provisions affect employees in their capacity as union members. So much may be correct, but if the provision in question also affects the employment relationship in a direct way that is neither consequential nor remote it pertains to the employer-employee relationship. Argument by reference to the multiple capacities of employees can lead into a morass of fine distinction. So maternity leave, leave to perform jury service and leave to train in the military reserve may all be said to attach to people in their capacities as parent, citizen, military reservist respectively. In my opinion, the provisions of such clauses pertain to the employment relationship. 119 I respectfully adopt the approach of French J. Provisions requiring an employer to permit an employee to engage in activities that are not part of the normal employment duties of that person, during times when that person would normally be expected to be engaged in duties on behalf of the employer, clearly pertain to the relationship of employer and employee. Provisions that require the employer to continue to pay the employee, even when the employee is engaged in those activities, also pertain to the relationship of employer and employee. Clause 46 of EBA6 deals with the times when the President of AIPA, an employee of Qantas, and the designates of the President of AIPA, also employees of Qantas, are to be relieved from what would otherwise be their obligations to perform duties for Qantas. Those provisions deal with a form of leave. It is true that AIPA is intended to benefit from the leave taken by those employees, because the purpose of taking that leave is for those persons to attend to the business of AIPA. The fact that this is the intended purpose of the leave detracts not at all from the fact that the provisions are provisions relating to leave, and are therefore at the heart of the employment relationship. Clause 46 of EBA6 relates partly to the calculation of the salary to be paid to one of Qantas's employees, who happens also to be the President of AIPA, and partly to the determination of the times during which that person will be required to perform duties on behalf of Qantas. Again, such provisions are at the heart of the employment relationship, and the fact that AIPA is a beneficiary of their application does not change the character of the provisions. 120 It follows that cll 45 and 46 and the related provisions of EBA6 fell within s 170LI(1) of the WR Act . EBA6 was properly certified, and AIPA and Qantas were bound by it, including by those provisions. In the event that Qantas is found to have been in breach of any of the terms of those provisions, Qantas is liable to penalties pursuant to s 178(1) of the WR Act . It is therefore necessary to turn to the question whether there were such breaches in the period leading up to 16 November 2005, when EBA7 was certified and EBA6 ceased to apply. 121 In the first place, Qantas was clearly in breach of cl 46.2, coupled with cl 46.6.1, of EBA6 in failing to pay Captain Woods at the rate of salary calculated in accordance with cl 24.2, in respect of the period from 7 November until 15 November 2005. With one exception, the evidence is to the effect that Qantas had adopted a practice of continuing to apply all provisions of EBA6 (including those that had been identified and agreed upon as possibly non-pertaining provisions) for as long as EBA6 remained in force. The exception is the evidence of what Ms Bussell said to Captain Woods on 7 November, when he complained to her that EBA6 was not being applied, after he had spoken with Captain Manning, Captain Kearns and Mr Hailes. Ms Bussell indicated that the non-pertaining provisions would not have force until the memorandum of understanding was signed. Even if there was a practice of applying EBA6 in its entirety, it is clear that it was not applied in one respect. The payment of additional salary to Captain Woods was never processed, as it would have been if Qantas had followed its usual practice of paying a newly elected President in arrears from the date of taking office. On the basis that cl 46 is an enforceable provision, Qantas offered no argument against the conclusion that it was in breach in this respect. Qantas and AIPA have agreed that the amount of the underpayment is $1,385.83. There will be an order that Qantas pay that sum to Captain Woods.