Australian Licensed Aircraft Engineers Association v O'Brien, M.K. & N.J. & Anor [1986] FCA 103

RESTRICTED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )

QUEENSLAND DISTRICT REGISTRY ) QLD Q1 of 1986 GENERAL DIVISION ) BETWEEN : AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION Applicant AND: MALINDA KATHLENE O'BRIEN and NEIL JOHN O'BRIEN First Respondents AND: CODDATIR AIRLINES PTY.LTD. (In Liquidation) Second Respondent SPENDER J. _ iy , 12 JUNE, 1986 yer A ES oA. RECFIVED 4 'D

v

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REASONS FOR JUDGMENT

This is an application by the Australian Licensed Aircraft Engineers Association which claims against the first respondent or, in the alternative, against the second respondent, the imposition of a penalty for breaches of the Aircraft Engineers' (General Aviation) Award 1982, ("the award")

concerning one Peter Cawley between 1 April 1984 and 30 October

1984.

The alternative formulation of the application arises because of doubts as to whether 1t was the first or second respondent who engaged the services of Mr. Cawley. If the second respondent is found to have engaged Mr. Cawley's services, then an issue arises whether the basis of the engagement was that of

employer-employee or as an independent contractor.

In addition, the applicant association seeks to recover any penalty that the court imposes and also seeks an order that the respondents pay to Peter Cawley the sum of $4,535.52, being the amount said to have been underpaid to him pursuant to his entitlement under the Aircraft Engineers' (General Aviation)

Award 1982.

Mr. Cawley filed an affidavit in this application and gave brief oral evidence. He was not cross-examined by either respondent as to the factual matters deposed to in his affidavit and I accept them. Between 1 April 1984 and 31 October 1984, Mr. Cawley was a financial member of the Australian Licensed Aircraft Engineers' Association, an organisation of employees which is a respondent to the Aircraft Engineers (General Aviation) Award 1982. Mr. Cawley remains a financial member of that association. On 2 April 1984, Mr. Truan, the Chief Engineer of Coddair Airlines Pty.Ltd. ("Coddair") asked Mr. Cawley to perform certain engineering work in relation to a Cessna aircraft operated by that company. Mr. Cawley had previously sought employment from