17 Dec Australian Federation of Air Pilots v Regional Express Holdings Limited  FCAFC 226 (16 December 2021) (Bromberg, Kerr and Wheelahan JJ)
INDUSTRIAL LAW – appeal from orders of the Federal Circuit Court of Australia – where the primary judge dismissed the appellant’s application below for declarations, pecuniary penalties and injunctive relief based upon allegations of contraventions of ss 340, 343 and 345 of the Fair Work Act 2009 (Cth) – where the contraventions were alleged to arise from the contents of a letter sent by the respondent to cadets undertaking a training program.
INDUSTRIAL LAW – adverse action – whether the primary judge erred in finding that the letter did not contain threats to take adverse action against the cadets by a threat that the respondent would not employ the cadets if they exercised a workplace right, and that they would be subject to disadvantageous terms of employment if they exercised a workplace right, in contravention of s 340 Fair Work Act – whether the presumption in s 361 of the Fair Work Act was engaged, and whether the respondent accordingly discharged its onus of proof – discussion of principles relevant to determining whether a threat was made – s 361 presumption engaged in relation to threats following Full Court’s decision in ABCC v Molina – properly construed, the letter conveyed the threats alleged and the primary judge erred in finding otherwise – remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing.
INDUSTRIAL LAW – action with intent to coerce – whether the primary judge erred in finding that, by the letter, the respondent did not threaten to take action against the cadets with an intent to coerce in contravention of s 343 of the Fair Work Act – properly construed, the letter conveyed the threats alleged and the primary judge erred in finding otherwise – whether presumption is s 361 was engaged, and whether the respondent accordingly discharged its onus of proof with respect to the required intention to negate choice – discussion of principles relevant to determining whether there was an intent to coerce – remitted to the Federal Circuit and Family Court of Australia (Division 2) for re-hearing.
INDUSTRIAL LAW – false or misleading representations – whether the primary judge erred in finding that the letter did not contain false or misleading representations – whether the letter contained representations “about” a workplace right – representations do not have to identify a workplace right in order to be “about” a workplace right – the relevant representations were not about a workplace right and accordingly were not false or misleading in contravention of s 345 of the Fair Work Act – primary judge’s decision in this respect affirmed.
INDUSTRIAL LAW – whether the appellant had standing to bring the proceeding because of its entitlement to represent the industrial interests of cadets under s 560(4) of the Fair Work Act – whether, in the absence of a member of the appellant who was affected by the alleged contraventions, the appellant had standing to bring the proceeding – no dispute that the cadets were not members of the appellant, but were entitled to become members – entitlement of the appellant to represent cadets for standing under s 560(4) is distinct from the entitlement of the cadets, under the appellant’s rules, to representation by the appellant – appellant not required to “bring with it” a “person affected” by the alleged contraventions – entitlement to represent the cadets was sufficient, and accordingly the appellant had standing.
PRACTICE AND PROCEDURE – whether the primary judge erred in permitting the appellant to present a case at trial which departed from that articulated in its “Form 4” and reply prior to trial – where the appellant’s “Form 4” and reply were in the style of pleadings – where the content of the appellant’s claims were relevant to whether and to what extent any statutory presumptions were engaged – in a proceeding not subject to pleadings, and where no order for pleadings has been made, the relevant question is whether the respondent was denied procedural fairness – in light of other findings, it was not necessary to decide the question with respect to the allegation of false or misleading representations – in the circumstances, there was otherwise no error in permitting the appellant to rely at trial on the terms of its opening.
PRACTICE AND PROCEDURE – circumstances in which an appellate court must or should remit a proceeding for re-hearing to the court below – discussion of relevant principles, including where relevant viva voce evidence was given by a witness at trial – benefit enjoyed by primary judge not available to appellate court – whether the court on appeal was in as good a position as the primary judge to make relevant findings – in the circumstances, it was not appropriate for the court on appeal to make the relevant findings.