JUDGMENT No. 4347.8. CATCHWORDS Industrial law - award - breach - right of entry ~ factors in mitigation of penalty - recipient of penalty. Conciliation and Arbitration Act 1904 s.119, s.88Z, s.88V(1)(e) Pilots (General Aviation) Award 1984 cl. 9, 21, 22 Helicopter Pilots (General Aviation) Award 1984 cl. 21, 26. AUSTRALIAN FEDERATION OF AIR PILOTS v. LEACH AERO SERVICES pry. LTD. No. V8 of 1988 GRAY J. ° MELBOURNE 24TH JUNE 1988 oe we ee ree rp, IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No. V8 of 1988 ee ee ee INDUSTRIAL DIVISION BETWEEN : AUSTRALIAN FEDERATION OF AIR PILOTS Applicant -and- LEACH AERO SERVICES PTY. LTD. Respondent JUDGE: Gray Jd. PLACE: Melbourne DATE: 24th June 1988 EX TEMPORE REASONS FOR JUDGMENT This is an application pursuant to s.119 of the Conciliation and Arbitration Act 1904 ("the Act") wherein the applicant claims penalties for breaches of awards. The applicant is, and has been since Il1st October 1986, an organization registered pursuant to the Act. Prior to that time, it was a declared body under s.88% of the Act. The two awards concerned are awards of the Flight Crew Officers Industrial Tribunal, made pursuant to Part IIIA of the Act. They are the Pilots (General Aviation) Award 1984 and the Helicopter Pilots' (General Aviation) Award 1984. By virtue of s.88V(1)(e) of the Act, those awards are to be treated as awards for the purposes of other provisions of the Act, including s.119. pve owe nmee . os noes The relevant provisions of the Pilots (General Aviation) Award 1984 are as follows: "9, (a) (dD) "21. {a} (b) (coc) Duty and flight time records each pilot shall be required to keep a progressive record of his duty and flight times, using duty and flight time record forms which shall be provided by his employer, in or similar to the format shown in appendix 2; the pilot's record shall be signed at the end of each calendar month by the pilot and the employer or his representative and shall be maintained or made available by the employer at the pilot's base for a period of 7 years or the duration of this award, whichever is the greater period." Right of entry duly accredited representatives of the Federation shall be entitled to enter an employers premises at mutually convenient times during normal business hours and Shall without unduly interrupting an enployers operation, be afforded reasonable facilities for so entering to discuss matters of federation business with pilots and to investigate matters relating to the application of this award; when pursuant to subclause (a) of this clause, a federation representative is investigating a matter relating to the application of this award, he shail he permitted to take notes from or make copies of the employers relevant records or documents; it shall be understood that the parties shall, at all times, adopt a reasonable and co-operative attitude in relation to the objectives of this clause and shall have the right to request the assistance Be pee Se ee ee peter oon ey a . weer oe ee ee "22. (a) (b) The relevant provisions 3. . of the tribunal in relation to frustration or abuse of such objectives." Salary records each employer shall keep up to date records in respect of each pilot in his employ, showing the pilot's award classification, gross salary, all allowances, all additions to salary, ali deductions and net salary; the records referred to in subclause (a) of this clause shali be maintained or made available at the pilot's home base and shall be made available for inspection by duly accredited representative of the Federation. Such records shall be kept for not less than 7 years or for the duration of this award, whichever is the longer." (General Aviation) Award 1984, are as follows: "21. (a) (b) (c) Duty and flight time records each pilot shall be required to keep a progressive record of his duty and flight times, using duty and flight time record forms which shall be provided by his employer, in or similar to the format shown in appendix 1; the pilot's record shall be signed at the end of each calendar month by the pilot and the employer or his representative and shall be maintained or made available by the employer at the pilot's base for a period of 7 years or the duration of this award, whichever is the greater period; the employer shall keep proper time and wages books and shall record duty, stand by, reserves and flight times of all pilots; of the Helicopter Pilots' aS eee ete Reece, 4. - (d) such records shall be available in the pilot's base and shall be liable to inspection by a duly accredited representative of the Federation during normal working hours." "26. Access to records. (a) Any personal file equipment record or check report of a pilot, whether at the head office of the company or at an outpost, shall be open to inspection by the pilot in the presence of the employer during normal business hours. (d) each employer shall keep up to date records in respect of each pilot in his employ, showing the Pilot's award classification, gross salary, all allowances, all additions to salary, all deductions and net salary; (e) the records referred to in subclause (a) of this clause shall be maintained or made available at the pilot's home base and shail be made available for inspection by a duly accredited representative of the Federation. Such records shall be kept for not less than 7 years or for the duration of this award, whichever is the longer period." Clause 27 of that award relates to the right of entry of union officials, but seems to be oriented to the investigation of complaints concerning the application of the award. By two separate letters, each dated 13th July 1987, the applicant, by its Industrial Officer, Mr. L.A. Cox, gave notice to the respondent of its intention to inspect, by duly a _ ae - oF a 5. accredited representatives, the relevant records of the respondent. These letters referred to clause 21 of the respective awards. The letters included the following passage: "I would be obliged if you would advise me of a time convenient to you during the week commencing Monday 3lst August when Federation representatives can call to inspect your Salary, Duty and Flight time Records." A copy of a letter of authority accrediting Mr. Cox on behalf of the applicant was enclosed with each of the letters. On lst September 1987, Mr. Cox, together with Mr. Hinds, the Chairman of the Northern Territory sub-branch of the applicant, attended at the business premises of the respondent at the Alice Springs airport. At that time, Mr. Cox requested a Mr. Leach, apparently a director and the manager of the respondent, that he be allowed to inspect the records of the respondent. Mr. Leach refused that request. A subsequent attempt was made by correspondence with the respondent to induce it to permit inspection of its records under the Pilots (General Aviation) Award 1984, That correspondence included a letter from Coldham J., who is the Flight Crew Officers Industrial Tribunal, supporting the request. The letter was returned, delivery having been refused by the respondent on or about 7th October 1987. ee a re er epee oe The respondent has appeared before the Court and has admitted breaches of the awards. In those circumstances the applicant is content to proceed only in respect of one breach of each award, even if the breaches concerned cannot be brought within s.119(1)(a) of the Act as two or more breaches of a term of an award. For these reasons, I am content to deal with the matter as if one breach of each award had occurred. Mr. Levy, on behalf of the respondent, has given from the bar table some account of the respondent's business and the size of its operations. It was incorporated in 1973 and has been operating a general aircraft charter business since then. Mr. Roger Leach is a director and manager of the business, which operates primarily from Alice Springs, with a branch at Yulara. Six full-time administrative staff are employed, including a company secretary, who is the chief pilot, and flies when required, a manager at Yulara, who is a pilot, who flies as required, and four office workers. There are also three full-time pilots, each of whom flies some 600 or 800 hours per annum, and casual daily pilots. At present there are nine such casual daily pilots. The respondent claims to have benefited pilots, by being prepared to hire persons of little experience and to give them opportunities to fly large numbers of hours. Ten aircraft are operated altogether. ae . err Ho eee . way : As to the reason for the breaches of the awards, the respondent says that its employees at the relevant time were not members of the applicant and actively rejected membership of it. This rejection led Mr. Roger Leach to the mistaken belief that he was entitled to refuse entry and inspection by the applicant. Subsequent to the events which I have outlined, the respondent took legal advice, and last November received legal advice that it was obliged to permit entry and inspection by the applicant in relation to its records. As a result, the respondent has now undertaken in court that it will give to accredited representatives of the applicant the right to enter its premises and to inspect the appropriate records. It should be noted that this undertaking has been given today in court and that no step has apparently been taken since the legal advice was received last November to ensure that inspection takes place. The undertaking is presently in broad terms, no date having been negotiated for an inspection to take place. By virtue of s.119(1D)(a)(i) of the Act, the maximum penalty applicable in a case such as the present is the sum of $1000. This is not a criminal case, but a civil case for recovery of a penalty. By analogy with the usual principles applicable to the criminal law, a respondent who yre me memes sew ey eer me es ite ile: Siete oo, ey a my 8. in effect pleads guilty should be given some consideration for that, with respect to penalty. There should also be, in my view, a large reduction in the normal penalty for the respondent's preparedness to give access to its records inthe present circumstances, although that reduction should not be as great as it would have been had the inspection been given prior to today, or even had there been firmer arrangements negotiated for such inspection. Naturally, proper regard should be given to the fact that the breaches arose from a mistaken view that the respondent's award obligations were in some way tied up with membership of the applicant by its employees. Taking all those matters into account, it seems to me that an appropriate penalty for breach or non-observance of each of the awards is $150. JI therefore propose to order that the respondent pay $150 in respect of its breach of each award. The only other issue which arises is as to the fate of each of the penalties. Section 120 of the Act provides that the Court has a discretion to order the payment of a penalty into the Consolidated Revenue Fund, or to such organization or person as is specified in the order. When a registered organization takes steps to enforce an award under aa ee we ae eee en ay ern ee . os t eo "0 meer ee ees Me nepee ceepenp eg the Act, it is appropriate that that organization should receive the benefit of any penalty. The legislation, in my view, is designed to encourage observance of the law by encouraging the taking of action in respect of breaches of awards. For those reasons, I make the following orders: 1. The respondent pay a penalty of $150 in respect of breach or non-observance of clause 21(a) of the Pilots (General Aviation) Award 1984, which breach or non-observance occurred on Ist September 1987. 2. The respondent pay a penalty of $150 for breach or non-observance of clause 21(d) of the Helicopter Pilots' (General Aviation) Award 1984, which breach or non-observance occurred on lst September 1987. 3. Each such penalty be paid to the applicant, the Australian Federation of Air Pilots. Appearances Mr. Tony Nemec for Australian Federation of Air Pilots Mr. Grant Levy for Leach Aero Services Pty. Ltd. Hearing Date: 24 June 1988. oo r ye ene ee ee et ret ee ee eee 10. I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment of the Honourable Justice Gray. Dated: 9 Avayst 1786 Associate Ly aha Abb we meee ee er te ee een cr ' ied ee : a :