Daniel Easton v Bourke Air Charter Pty Ltd & Ors

HEARING DATES: 04/10/2000; 04/11/2000; 04/12/2000; 06/26/2000 DATE OF JUDGMENT: 09/06/2000

Mr I.C. Latham of counsel SOLICITOR: Gilbert & Tobin LEGAL REPRESENTATIVES: Mr A.G. Rogers of counsel SOLICITOR: Webb & Boland

JUDGMENT:

• 46 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J

IRC6040 of 1998 DANIEL EASTON v BOURKE AIR CHARTER PTY LTD, BOURKE AERIAL SPRAYING PTY LTD AND PETER RONALD SMART Application under s106 of the Industrial Relations Act 1996 JUDGMENT 1 This application under s106 of the Industrial Relations Act 1996 (the Act) is for orders declaring a contract of employment void ab initio or varying the contract because it is unfair, harsh or unconscionable or contrary to the public interest. The application is for orders just in the circumstance as to rate of pay for ordinary hours and overtime worked, superannuation payments, annual leave payments and cost of training, notice as well as lost earnings reflected in the applicant's inability to achieve an agricultural pilot licence. 2 Mr I. Latham of Counsel appeared for the applicant and Mr A. Rogers of Counsel for the respondents. The hearing proceeded over four days and judgment was reserved on 26 June 2000 after final written submissions had been received and addressed.

The facts 3 The applicant, at the time he entered into this employment contract, was a 33 year old man who was qualified as a commercial pilot. The circumstances of his employment are relevant. In about July 1996 the applicant drove into Bourke airport and approached Mr Peter Ronald Smart, the third respondent, who is and was a director of Bourke Air Charter Pty Limited, the first respondent, and Bourke Aerial Spraying Pty Limited, the second respondent. The applicant was searching for a position with a regional air service. He was a qualified commercial pilot looking for an opportunity to fly commercially. For a young pilot there is a need to gain flying experience which allows him/her to clock-up flying hours. 4 Mr Easton's evidence was that he travelled right across the country visiting airfields in an attempt to find a pilot's position. As well he sent hundreds of letters before he obtained this position. Through it he hoped to clock up flying hours and gain flying experience such as to lead to more lucrative employment as a commercial pilot. I accept he drove into the airport at Bourke and asked Mr Smart for a pilot's position. They discussed the applicant's qualifications and work experience. The terms of the employment contract entered into between the two are extraordinarily vague from both Mr Smart's evidence and the applicant's evidence. 5 The applicant was also a fully qualified tradesman builder. At the time he joined Mr Smart he was earning between $800 to $1500 a week in the building trade. This fact was within Mr Smart's knowledge. The applicant was prepared to sacrifice these earnings to obtain a position that gave him the opportunity to fly. Part of the agreement reached between the two was the applicant would fly charter work and also, serve fuel, maintain fuel facilities, assist in aircraft maintenance and use his tradesman's skills to assist the employer. The applicant used his carpentry qualification to build sheds, repaired buildings and between September and October 1997 helped construct a new spray pad at Mungindi. 6 Before beginning work, the applicant was required by Mr Smart to obtain a further qualification called the global positioning system (GPS) which was in effect an instrument flying qualification. This course involved the applicant in the expenditure of $175. He passed the appropriate test and obtained the qualification. 7 The initial rate of pay to the applicant for ordinary time was $10 per hour; overtime was $12 per hour and was payable after 7.5 hours per day had been worked, that is, it was agreed the applicant would work a 37.5 hour working week. Sometime into the employment, about February 1997, the rate paid for ordinary time was increased to $12 per hour and overtime was paid at the same rate that is $12.00 per hour but not until 76 hours had been worked per fortnight. The latter arrangement involved a variation to the original employment contract. The applicant therefore originally worked for $400 per week plus overtime and then for $420 per week plus overtime. 8 Mr Smart was operating two particular flying businesses, one provided charter flights and the other operated as a crop dusting business, that is, an agricultural flying business. Different types of planes were used for the different types of flying work. It was agreed a crop dusting pilot earned significantly more monies than a charter pilot and such was a reflection of the more specialist qualifications and skills a crop dusting pilot offered an employer. 9 The nature of the Bourke flying business was there was a considerable amount of work, involving very long hours during the crop dusting season from October to April each year. The increased workload affected not only the pilots but involved all ground staff as well. The crop dusting planes required trucks to mark out the fields and much maintenance and loading work was done on the ground to keep these planes in the air. From the very first days of his employment, the applicant gave evidence, he was required to be a marker for the agricultural pilot as part of his general duties. 10 There was also the charter flight work. The charter flight experience which the applicant obtained from the charter business was the small average of 3.5 flying hours per week. After performing this limited charter pilot work from July 1996, it was conceded that in March 1997 Mr Smart first mentioned to Mr Easton the possibility of the applicant obtaining an agricultural pilot rating (APR) so he could undertake more flying work but as an agricultural pilot. After the first conversation, there was a further conversation in late April or early May 1997 about the practicalities of pursuing this qualification for the applicant. The applicant told Mr Smart: "I have organised the money for an APR . . . I am keen to pursue a career in agricultural flying". 11 Arrangements were made by Mr Smart for that qualification to be obtained in Leongatha, Victoria, with a qualified person known to Mr Smart called Mr Barry Foster. The cost for this qualification was $9,565.00 which cost was borne by the applicant. Of this the applicant says: . . . As there is a large difference in rates of pay between charter and agricultural flying I was prepared to invest in my future in this way. The applicant attended at a first course in June 1997 but it was then cancelled because of an accident five days into the course. He attended the next course on 8 August 1997. The applicant attended the course in his holiday time as required by Mr Smart. He completed the course in early August 1997. 12 Mr Smart had two crop dusting planes, one called the AT502 and the other, AT802. To fly either of these planes, the applicant had to obtain the further qualification known as the APR. Without such a qualification he could not fly as an agricultural pilot. 13 The APR qualification was the first step that had to be taken by the applicant to qualify as an agricultural pilot. The applicant then had to be covered for insurance as a crop dusting pilot by Mr Smart and to be "endorsed" to fly the particular planes owned by Mr Smart. Arrangements for these two steps were the responsibility of Mr Smart. The applicant had expected to have the insurance cover and the extra endorsements on the planes very quickly after he obtained his APR qualification. 14 Evidence revealed the crop dusting season is October to April and the applicant was hoping to fly as an agricultural pilot by the October 1997 season. The applicant says he was originally only expecting to clock up his "supervised hours" as a crop dusting pilot over the first season. An expert, Mr Peter Weatherstone gave evidence as the Executive Officer of the Aerial Agricultural Association of Australia Ltd, a position he had held for 14 years. He said he fought with the industry he represented to support these young pilots in gaining their hours flying agricultural work. 15 The applicant asserts after a conversation with Mr Smart he was led to believe he would be Mr Smart's second agricultural pilot. During that conversation, they agreed on a salary of $35,000 as an agricultural pilot for the first season. As he was only receiving $21,840.00 as his base rate, this was a promise of a considerable increase. However, there was no discussion as to hours to be worked or overtime. This conversation allegedly occurred after the applicant returned to work with his APR qualification. Mr Smart did not concede he had led Mr Easton to believe he was to become the second ag pilot for the business: Q. . . . Why were you having a conversation about money if he was not going to be the ag. pilot? A. I was - I believed he was concerned - he borrowed money for his rating. I believe he was concerned to sort of get an expectation of what he might reasonably make engaged in the operations that he could realistically undertake. Q. Realistically undertake as an ag. pilot? A. Yes. He could not realistically be the second ag. pilot for the season. Q. You didn't tell him that did you? A. I am sure he understood that. Q. Did you tell him that? A. I believe I did. I mean with his experience there was no way he could have been second full time ag. pilot for the season. Q. You were saying today that you remember saying to him that he could not be the ag. pilot - is that what you say today? A. No, I don't remember a specific incident when I said that. Q. Do you remember saying it or not? A. Not specifically, no. 16 There was a considerable delay after Mr Easton obtained his APR in mid August. Mr Smart said he had to prepare significant paperwork to obtain the insurance and the endorsement for Mr Easton to fly his crop dusting planes. Although not originally forthcoming in the affidavit evidence, some of that documentation was provided throughout the hearing of the matter. The disagreement between the applicant and Mr Smart began with the applicant becoming disgruntled about the time it was taking to obtain his insurance and endorsement. It is clear there was no communication between Mr Smart and the applicant about what steps Mr Smart was taking. There seems to have been no discussion between Mr Smart or the applicant about the time delay between mid August when the applicant obtained his qualification until 3 December 1997 when Mr Smart showed the applicant an insurance document which said the applicant would only be insured to fly "ferry flights" rather than as a full crop dusting pilot. The applicant was shocked. He was then told his endorsement would be on 6 January 1998, one month further on. 17 By the time of the endorsement, the two steps required of the employer to ensure the applicant could fly agricultural planes would have taken over five months. The applicant felt frustrated especially because the crop dusting season was October to April and he was missing the best opportunity for both clocking up flying hours, getting his supervised hours over with and earning better monies as both the parties agreed would be the case. While Mr Easton waited, two intervening incidents occurred. 18 The first intervening incident related to a chemical exposure suffered by the applicant on 2 December 1997. He was cleaning an agricultural aircraft which was part of his normal duties. He opened the aircraft's chemical hopper lid and suddenly inhaled a large amount of chemical vapour. He alleges the vapour burnt his face and his eyes and he felt a burning sensation in his throat and oesophagus. He reported the incident and then there seems to have been an interview with the applicant by Mr Smart in his office. Mr Smart's evidence was he was attempting to obtain all the information from the applicant to determine what appropriate relief he could provide for the applicant's symptoms but the applicant seems to have felt Mr Smart delayed him for 30 minutes and all he wanted to do was to get to the hospital to obtain relief from the discomfort caused by the exposure. 19 Another incident occurred on 12 December 1997 at about 8pm, the end of the working day. There was a dispute between the applicant and Ms Davidson, the de facto of Mr Smart. Mr Easton admits that he drove his car on the tarmac to return tools and lockup the hangar before he went home. He agrees the car should not have been on the tarmac but says he was aware there were no aircraft movements in the area at that time. Mr Easton alleges: Following this conversation and due to the stress of the past months, I became extremely upset. I decided to drive that same evening to Sydney to see my wife, Rowena, who at that time was my de facto. We stayed with my mother at her home in Manly. 20 From that evening on the working relationship broke down. It appears after work on that day and after the incident on the tarmac Mr Easton went to a local public house and in the company of another pilot employed by Bourke Air, Mr Tim Greenaway, while having a drink, burst into tears. He then drove to Sydney. On the Sunday in Sydney the applicant attended at Allambie Medical Centre and obtained a medical certificate from 14 December 1997 to 19 December 1997. The next day his then de facto, now his wife, rang Ms Davidson and told her Mr Easton would not be returning to work until the following Monday, 22 December 1997. A copy of the medical certificate was faxed to Ms Davidson. 21 Mr Smart rang the applicant's home on the Monday and again on the Tuesday, 16 December 1997. Mr Easton agrees he said to Mr Smart: I'm not feeling the best. I think I've had a bit of a nervous breakdown. I've got another doctor's appointment on Friday. I'll talk to you next week. Mr Smart's evidence was he received this information with shock and it endorsed the fear he felt after a conversation with his other pilot, Mr Greenaway, who had reported back on the teary state of Mr Easton the previous Friday. 22 On Friday 19 December 1997, still in Sydney, Mr Easton went to see Dr Rae Hensley. She is a clinical psychologist from whom he had had professional advice about a personal relationship with the person now his wife. After discussion, especially related to the circumstances leading up to the consultation, Dr Hensley assured the applicant he was not suffering from a nervous breakdown and he was fit to resume work as a pilot. She gave him some advice on how to handle his work situation. She wrote a receipt for the consultation listing it as a psychological consultation. She wrote no report nor gave any medical certificate to the applicant. However, Mr Easton obtained a medical certificate from his GP for five days off work. It did not contain any reference to the type of illness for which he was certified for the time off. 23 At the suggestion of Dr Hensley, Mr Easton prepared a handwritten list of grievances to discuss with Mr Smart. It read as follows: Daniel Easton's Grievances Organisational roles and responsibilities * Unclear as to who is responsible for the following: Who gives the orders What types of orders can they give When are they to be given * Contradictory orders given * Lack of consultation, secretive and untrusting * Assumption that employees are available at the discretion of employer * Use of personal credit cards for essential business expenses eg fuel and travel allowance * No time or facilities made available during core business hours for essential flight planning

Human Resources Issues * Award infringements, eg, leave, leave loading, withholding of wages, non payment of wages * Rates of Pay * Start and finish times * Unclear as to your expectations of your employees * Lack of positive feedback in all facets of the business * Insinuations made by management that I do not work whilst on charter * Training and development costs not being met by the employer * The lack of safety equipment. I have purchased my own safety equipment which has then been used by other staff raising hygiene concerns

Agricultural Rating * Agricultural rating obtained on your request. At your preferred location and time. It was agreed that this rating would lead towards a career in agricultural aviation flying turbine aircraft. On further discussions a plan for this season 97-98 was agreed to including money. * Thus far I have obtained my Agricultural rating. Further progress has been hindered by management issues which were known and could have been resolved prior to commencement of said Agricultural rating. 24 On Mr Easton's return to work on the Monday, 22 December 1997, the working relationship collapsed. The applicant discussed generally his grievances with Mr Smart and then flew a charter from Wirracinna. On the next day, Tuesday, the applicant gave to Mr Smart the typed copy of the handwritten grievance list he had gone through the day before. Mr Smart did not discuss the list of grievances nor did he refer to it during the remainder of the week. Mr Easton continued to do his normal work. 25 After receiving no reaction to his grievances, on Monday 29 December 1997 the applicant requested a further meeting with Mr Smart. Attending this meeting was Ms Davidson. The applicant's agricultural flying and the associated delay was particularly discussed. Mr Smart made the point he needed a flexible working staff but agreed he would be prepared to talk wages with Mr Easton. At the meeting Mr Smart informed Mr Easton: I had every intention of endorsing you on 6 January but I'm going to cancel that because I don't think you're ready for the stresses associated with ag. flying because if you're getting stressed now at this stage of this season once you start flying the stress increases tremendously.

Mr Easton allegedly replied: But the stress I'm complaining about doesn't come from the work, it comes from the environment in which I'm working and the people I'm working for.

Mr Smart allegedly said: Stress is stress. I also think you are unsuitable for the industry because of your lack of tolerance to chemicals and with your recent reaction to chemical vapour.

The particulars on the list of grievances were not discussed. Mr Easton was very concerned when Mr Smart then told him his endorsement appointment on 6 January 1998 was to be cancelled. 26 Mr Smart then asked Mr Easton to undergo an aviation medical to assure him that the applicant was fit for duty. The applicant's medical certificate from his general practitioner was only to 22 December 1997. It cleared the applicant to return to work but did not state the type of injury he had suffered. It was not until one week after the applicant's return to work on 29 December 1997 that the employer stated his concern about the applicant's medical clearance. Mr Easton agreed immediately to get another medical clearance. Notes were taken of this meeting but have not been produced by the respondents under subpoena. 27 The applicant made an appointment to see Dr Beith in Dubbo and the earliest appointment was on 2 January 1998. On that day he requested a vehicle from Mr Smart so he could drive to the appointment. This was refused. Using his own car Mr Easton went to Dubbo and saw Dr Beith. Dr Beith said, having looked at the list of grievances the applicant produced and hearing the history of the matter, he wished to discuss the issue with the Civil Aviation Safety Authority (CASA) as he understood the certificate would be used as a medical clearance to fly aircraft. 28 On 5 January 1998 Mr Easton tendered his resignation effective from that date. He gave four weeks' notice in accordance with the Pilots (General Aviation) Award 1984. Of the resignation the applicant said: It was clear to me that nothing was going to be done by Mr Smart to address the issue of my rate of pay as promised, my AT502 endorsement had been cancelled and there appeared to be no possible future in agricultural spraying with the Second Respondent. Mr Smart and Ms Davidson were also becoming increasingly hostile toward me and I felt I had no other option but to resign. I handed Ms Davidson an envelope containing my letter of resignation giving four weeks notice. . . .

Mr Smart accepted the resignation and the applicant began to serve out his notice. 29 The day after the resignation, on 6 January 1998, the applicant was called into Mr Smart's office and was told he was being stood down immediately from all duties until he provided Mr Smart with a "Fit for Duty Certificate". He was stood down without pay. This was now almost a month after the collapse of the applicant after work in December 1997. The applicant contacted Dr Kleinig of CASA who informed him he had a clearance and it had been posted to him. Mr Easton informed Mr Smart of these circumstances, however, he remained stood down from work for three days. 30 On Monday 9 January 1998 when he returned to work, he was challenged by Ms Davidson who arrived at work late and saw Mr Easton at work performing his normal support duties. She demanded he return to the office. The applicant told her of his medical clearance. This conversation seems to have been rather heated. Importantly, Ms Davidson was making the point he had to report to her before he started work and she would allocate the duties he was to perform. Further he was told he was still stood down from work until the written clearance came through. On 14 January 1998 the applicant finally received his written clearance. He was told he could return to work but he would still not be given flying duties. He performed his other duties from 14 to 27 January 1998. 31 On 27 January 1998 Mr Easton was paid three days short of his full fortnight's pay because he had been stood down. He challenged this decision and asked Mr Smart: Q. Are you going to fly me? A. No I'm not going to fly you again. 32 Mr Easton, although in receipt of Dr Kleinig's medical report, also put to Mr Smart that the CASA regulations only required a medical clearance if an impairment lasted for at least seven days and although he had obtained the appropriate clearance he wished Mr Smart to know had not been obliged to so do. This conversation became more aggressive and Mr Easton challenged Mr Smart saying: Why did you contact Dr Kleinig on 8 January 1998 stating that I had a nervous breakdown after I had informed you on 22 and 29 December that was not the case? Mr Easton then suggested: I'm extremely stressed. Are these incidents designed to piss me off? 33 Mr Easton left the employment on 30 January 1998 after serving out his notice and has not flown again.

Consideration 34 As to the unfairness in the contract or in the performance of the contract, the court is guided by the principles enunciated in Port Macquarie Golf Club Limited v Stead & Anor (1995-96) 64 IR 53. The Full Bench examined s275 of the Industrial Relations Act 1991 which is a similar provision to s106 of the Industrial Relations Act 1996. The court, it says, must make an examination of the particular facts of the case (at 59): Unfairness may arise either from the terms of the contract or arrangement itself, the surrounding circumstances and/or from the manner of performance or operation of the contract or arrangement: Barry v Incitec Limited (1991) 45 IR 143 at 146; Incitec Limited v Industrial Court of New South Wales (1992) 45 IR 155 at 157-158; and Baker v National Distribution Services Ltd (1993) 50 IR 254 at 270-271. 35 In applying the test for unfairness the Full Bench guides the court to take (at 59-60): . . . the common sense approach characteristic of the ordinary juryman by applying standards providing a proper balance or division of advantage and disadvantage between the parties who have made the contract or arrangement, bearing in mind the conduct of the parties, their capability to appreciate the bargain they had made and their comparative bargaining positions when entering into the contract or arrangement: Davies v General Transport Development Pty Ltd (1967) AR (NSW) 371 at 374: A & M Thompson Pty Ltd v Total Australia Limited [1980] 2 NSWLR 1 at 13; and Baker at 271-272. And the Full Bench further warned (at 60):

(11) The discretions allowed by s.275 to the Court are extensive and the Court should not interfere with bargains freely made by a person who was under no restraint or inequality, or whose labour was not being oppressively exploited: Stevenson v Barham (1977) 136 CLR 190 at 192; and Baker at 276. 36 The circumstances in which this employment contract was entered into raises a number of issues, namely, - what were the terms of the contract and did the contract from its initiation or at some other time become unfair, harsh or unconscionable or against the public interest? It is very rare that an application brought under s106 of the Industrial Relations Act 1996 raises the issue of public interest but this case the applicant submits brings to the fore the public interest in assuring there is appropriate training and work experience for New South Wales's young pilots and also that they enjoy appropriate pay and work conditions. 37 The applicant alleges the unfairness in the contract was the unfair wages paid to him and also his work conditions. Further he asserts in the circumstances surrounding his employment he was not in an equal bargaining position when entering into this employment contract. He alleges he was at complete disadvantage when negotiating this contract and the wages he was to be paid and the conditions under which he would work were not really discussed with him. 38 The applicant relies on s105 of the Act in support of his particular assertion the contract was unfair in that he was paid as a contractor less than an employee under the Pilots (General Aviation) Award 1984 (s105(c)) and that the contract was designed to avoid the provision of an industrial instrument. Section 105 states: 105 Definitions In this Part: contract means any contract or arrangement, or any related condition or collateral arrangement, but does not include an industrial instrument. unfair contract means a contract: (a) that is unfair, harsh or unconscionable, or (b) that is against the public interest, or (c) that provides a total remuneration that is less than a person performing the work would receive as an employee performing the work, or (d) that is designed to, or does, avoid the provisions of an industrial instrument. 39 As to the alleged unfairness in this employment contract, the applicant relies on his grievance document to outline his claim. Such unfairness he asserts is reflected through his working conditions including rates of pay; Mr Smart's failure to address his grievances; the need to obtain further qualifications at his own expense; the need to use his holiday to gain those qualifications; the delay by the employer in obtaining endorsements; the circumstances of his termination and the respondent's conduct in that termination. 40 The terms and conditions of this contract of employment from its inception were not well defined by either party. However, Mr Easton was a 33 year old man when he began this employment with qualifications sufficient on the open labour market for him to earn beyond $800 a week. From the evidence, it appears Mr Smart determined he would not pay him under the Pilots (General Aviation) Award 1984 but offer a general wage structure of $400 per week. Mr Smart reveals this figure was not based on any award but that he struck the figure himself having been frustrated when he sought guidance from the industry and relevant government departments. Mr Smart acknowledges he intended to use the applicant's building/carpentry experience on the job and in fact did so. 41 I am satisfied from the evidence Mr Easton was first and foremost employed as a pilot. Mr Smart's evidence was:

Q. In fact, you employed him as a pilot? A. No, I employed him to work in the business. Q. It was essential for his work that he be a pilot was it not? A. It was the basis of the agreement - it was the basis of the agreement of employment that part of his duties would be to fly the aircraft. Q. Yes, if I could ask you the question; it was essential to his work that he be a pilot, wasn't it - is that correct? A. I'm not sure that I understand that. Q. Well, he was employed by your company as a pilot, wasn't he, that was the essence of his employment? A. That was part of the essence of his employment. . . . . Q. Let me ask you this then; would you have employed him had he not been a pilot? A. Not in the position that I put him in, no. Q. That's correct, you put into writing that he had commenced employment with you as a charter pilot, didn't you? A. If you are referring to his ... Q. I am just asking you, you wrote that, didn't you, you put that in writing? A. In the reference that I supplied him when he resigned? Q. Yes. A. Yes I did. 42 The applicant submits, as he was employed as a pilot, he should have been paid as a pilot. He relies on Clause 8 of the Pilots (General Aviation) Award 1984 where "Pilot" is defined as meaning: . . . a person who is the holder of Commercial Pilot's Licence or Senior Commercial Pilot's Licence and is employed under the provisions of the Award.

Clause 17, "Pilots' Duties" relevantly reads: (a) An employer may direct a pilot to carry out such duties as are within the limits of the pilot's skill competence and training, provided that such duties are not designed to promote deskilling and are consistent with safety requirements.

(b) An employer may direct a pilot to carry out such duties and use such tools and equipment as may be required provided that the pilot has been properly trained in the use of such tools and equipment.

(c) Pilots' duties shall include but not be limited to: (i) Operational duties associated with the preparation for and conduct of a flight, including normal fuelling, refuelling and handling of passenger baggage and/or cargo subject to cl 27. . . .

The applicant submits such duties were performed by him in his employment with Mr Smart. 43 As to the rates of pay he received, the applicant submits they were unfair. The respondent relies on the following evidence of the applicant to submit in the circumstances the level of salary struck was fair: Q. Why didn't you inquire as to what wage you would be receiving? A. I was just glad to get the job. Q. Was that because the job in the industry for someone with your length of expertise was a legitimate mechanism for increasing your flying hours? A. You have lost me, could you say that again? Q. Having a job such as this would enable you to increase your flying hours? A. Yes. Q. And that would in turn enable you to take on employment at very high rates of pay. That is so is it not? A. After a period of time. Yes.

The respondent submits the mere fact a person receives less than the so called industry standard does not, of itself, make a contract unfair. 44 The applicant expressed the view: Q. Well, why didn't you say to Mr Smart 'you are under paying me'? A. I believed I would have been terminated . 45 In assessing whether this contract in terms of the applicant's rates of pay was unfair and whether it is appropriate in the circumstances to take into account the Pilots (General Aviation) Award 1984 rates, the court notes the comments in Huskisson RSL v Sullivan (1990) 31 IR 404 (at 415): It may also be argued on one view of the matter that any contract of employment which provides for, or results in its operation in practice, the payment to the employee of a lesser remuneration, e.g. wages, than that prescribed by an applicable award is unfair. By definition, the award prescribes just and reasonable rates of pay. Any lower rates are therefore neither just nor reasonable and a contract providing for payment of such unjust and unreasonable rates is unfair. 46 However, Hill J in Newton v Goodman Fielder Mills Limited (1997) 81 IR 227 really added a proviso to this view when he said (at 232): . . . The question is not whether the award is fair but whether the contract of employment is unfair. Awards do (must) of course prescribe fair and reasonable conditions of employment; but they are based upon general standards applicable to all employees covered thereby. As a general rule they do not have to have regard to the special circumstances pertaining to the employment of a particular employee; those matters are appropriate to be dealt with by the individual contract of employment. An award applicable to particular occupation or calling sets the minimum terms and conditions below which the contract cannot fall. On the other hand, s 10 is, as were its predecessors s 275 of the 1991 Act and s 88F of the 1940 Act, designed to deal with the fairness or unfairness of a particular contract or arrangement of employment having regard to all circumstances and considerations relevant thereto. 47 Hill J went on to hold (at 233): In my opinion, the provisions of the relevant award, assuming they are applicable to the employment in this case, provide no barrier to a determination by the Commission that the contract is unfair because it does not contain an express provision for fair and proper notice and/or such other provisions governing the termination . . . as may be found fair and reasonable, having regard to all of the circumstances of and surrounding his employment and its termination. 48 The applicant submits that it is a matter of public interest that the respondent adopt the Pilots (General Aviation) Award 1984 conditions and rates of pay as a guide to applicable work. Such a view it proposes is unexceptional. While the Pilots (General Aviation) Award 1984 referred to is a Federal Award, not a State Award, nonetheless I accept it can provide to the court a guide as to an appropriate wage rate for pilots. The applicant submits it is in the public interest that appropriate regulation of employment through awards and other industrial instruments occur (see s3E of the Act). Attention by the applicant is also drawn to s106(4) which states the Commission must have regard to the provision of a sufficient and trained labour force. 49 Mr Weatherstone, Executive Officer of the Aerial Agricultural Association of Australia Ltd, also revealed the general aviation section probably encompasses in the order of 400 to 500 companies. He noted the Pilots (General Aviation) Award 1984 provision covers only those employees of companies who are signatories to the award. Clause 4(a) of the Pilots (General Aviation) Award 1984 relevantly states: 4 - Area Incidence and Operation (a)(i) This award shall be binding in Australia and its dependencies on the Australian Federation of Air Pilots and the employers and organizations listed in Schedule A attached hereto as to employment for hire or reward of pilots, whether members of the Federation or not, as operating crew members for aircraft in general aviation operations excepting helicopter and aerial agricultural operations. 50 The Pilots (General Aviation) Award 1984 and the Aerial Agricultural Aviation Pilots' Award 1983 were both placed before the court. Mr Easton identified himself qualified as a Second Year of Service, Captain Multi-Engined under the Pilots (General Aviation) Award 1984 which in March 1997 would have attracted a salary of $27,914 per annum. However, Mr Smart, his employer identified the applicant as a First Year of Service, Captain Multi-Engined, which under the Pilots (General Aviation) Award 1984 would have attracted $27,289. Both parties agree the applicant had an instrument flying rating (first class) or Class One which under the Pilots (General Aviation) Award 1984 would have attracted an allowance of $3,482 per annum. The parties agree if any award is a guide and this is not conceded by the respondents, it would be the rates under the Pilots (General Aviation) Award 1984 as Mr Easton did not perform in his employment as an agricultural pilot. The Aerial Agricultural Aviation Pilots' Award 1983 was before the court in support of the wage loss/notice claim to give a guide to the court as to the applicant's loss. 51 The applicant alleges that although the first, second respondents and third respondents are not signatories to the Pilots (General Aviation) Award 1984, he should be covered by its conditions or at least they should provide to the court a guide as to a fair and just pay rate for a pilot. The respondents submit the applicant was not hired simply as a pilot but as a pilot and general labourer and therefore he should not be paid under the Pilots (General Aviation) Award 1984 but under the terms of the contract in which he agreed to be paid at the initial stage $400 a week, varied some three months later to $420 per week plus overtime. Had the applicant been paid under the Pilots (General Aviation) Award 1984 accepting the respondent's submission he was a First Year of Service Captain, Multi-Engined, he would have attracted a salary of $27,289 plus $3,482 that is, $30,771 per annum - which would have give him a salary of $591.75 per week. 52 The applicant submits the purpose of s106 of the Act is to prevent the avoidance of industrial instruments (see s105 of the Act) and that the evidence of payment of less than an industry standard indicates an unfairness in the contract. The respondent submits as only three and a half hours flying time per week on average were recorded during the employment, the applicant would not fall in under any Award that covers pilots. They submit the Pilots (General Aviation) Award 1984, a Federal Award, does not establish "industry standards" for an employment contract in NSW. 53 Documents support the applicant's claim that during the busy flying periods pilots and ground staff were required to work up to 50 hours a week. He agrees he was paid overtime rates for the period. Between July and October the documents reveal an absence of any claim by Mr Easton and it would appear that time sheets, as a matter of habit, were only filled out when overtime was performed and claimed. Between April and October each year there was a lull in the workload. This is endorsed by the fact it was agreed by Mr Smart that June/July would be a suitable time for Mr Easton to take his holidays and complete his APD qualification. 54 In an examination of the records the applicant worked some 400 hours of overtime. The figures reveal the applicant was paid for those hours at a lower rate than his ordinary rate of pay. He was paid $12 per hour for ordinary hours worked over a 37.5 hour week and $12 per hour (the same rate as for ordinary hours) for overtime but only after 76 hours worked per fortnight not as would be the norm for work performed after a 37.5 hours week on a 75 hour fortnight. 55 As to the respondent's submission that the overtime claim was not pleaded and therefore not part of the claim before the Court, the applicant submits the overtime claim was incorporated in the comprehensive claim for an order that the respondent pay fair rates of pay and fair conditions to the applicant. 56 As to the overtime rate paid to the applicant, the court finds it significant that the evidence reveals the penalty rate paid for overtime on a fortnightly calculation was, in effect, a lower rate of pay than the ordinary time rate of pay. It is certainly standard industrial practice for overtime to be at a higher rate than the pay rate for ordinary hours. The purpose of this industrial practice is to ensure that a worker is properly compensated for working outside agreed ordinary hours. The respondent submits the applicant received additional pay for overtime and there is no community standard for an overtime rate. 57 Generally, the respondent submits it was not looking for anyone to employ; it suited Mr Easton to obtain this position; Mr Easton had an agenda to clock up flying hours sufficient to take the job at the rate of pay offered and as a hybrid employee, the rate struck was a proper rate of pay under the circumstances. 58 Given an examination of the time sheets and taking into account the considerable number of hours worked by the applicant, the make up of those hours during which the applicant worked and the type of work the applicant performed, the court finds the level of remuneration paid to the applicant gives no credit for his skills as a qualified pilot or even the extra carpentry qualifications the applicant offered this employer. 59 As to the public interest the matters to which the Court is to have regard must include the effect that the contract has on any system of apprenticeship or other methods of providing a sufficient and trained labour force. The evidence reveals young pilots need to "clock up" flying hours to obtain commercial flying experience especially those pilots who qualify without entering a training programme. Young pilots like Mr Easton have great difficulty obtaining their flying experience. Mr Weatherstone was specific as to the need for the industry to support young pilots in the agricultural flying area. The evidence of the search for employment and the conditions of employment offered to this applicant are relied upon to invite the court to find this contract unfair in the public interest. However, there was no evidence before me as to what the supply and demand situation for young pilots generally is in the industry. Neither do I find in this employer an intent to defraud. However, I accept the words of McKeon J when he said of a contract "whether there be moral transgression on the part of one . . . of the parties or only 'award shyness' this type of agreement be, generally speaking, not sanctioned" (Mozzoni v Dean 70 AR 1, 1970 AILR Rep 24). 60 There was no chance on the evidence before me of the applicant's earnings under the contract reaching what an employee would have earned under the appropriate award. 61 From all of the above evidence, taking into account Mr Easton's qualifications and taking the Pilots (General Aviation) Award 1984 as a guide, the court finds there was an unfairness in the contract from the day it was struck as to the level of pay to Mr Easton both as to his weekly rate of pay and his overtime rate. 62 The court is satisfied from the evidence that the contract of employment provides a total remuneration less than an employee performing work under the Pilots (General Aviation) Award 1984 would have received. The court is further satisfied that the amount struck does not fairly take into account the two skills offered to this employer, namely, the applicant's piloting skills and carpentry skills. What work, from the evidence, was required of the applicant and the benefits enjoyed by the respondent through employment of the applicant indicate the payments resulting from the contract were too low. 63 The court also takes into account the fact that the applicant took this employment knowing he would take a deduction in the $800 salary he had earned as a carpenter. The evidence however reveals the employer struck the rate of pay himself. It was not an agreed term of the contract before employment but I accept the applicant was desperate to get the work and was prepared to take any rate. I also accept the applicant's evidence he was troubled that a complaint about the salary rate would bring about his termination. 64 As to Mr Easton's allegation of an unfairness in the conduct of the contract when he did not get the co-operation of his employer to assist him in gaining his agricultural rating, the respondent did not produce documentation outlining its defence to this allegation until cross examination. A document dated 3 December 1997 revealed that there were some negotiations going on with the insurance broking firm about the insurance cover to allow Mr Easton to perform agricultural flights. This document indicates Mr Easton would be only doing "ferry" flights. It was this document when shown to Mr Easton in early December which brought the full realisation to the applicant that, although he had been led to believe he was to be insured to perform full crop dusting pilot work, it was not going to happen in this crop dusting season if at all. However, Mr Smart defends his actions saying this was a step by step insurance process that involved significant documentation. 65 The respondent, Mr Smart, alleges he was bona fide in support of the applicant becoming an agricultural pilot. He relies on his endeavours to ensure that Mr Easton obtained the appropriate qualification by pointing out he had to prepare significant documentation for insurance. He further submits, in a true reflection of his commitment to assist Mr Easton, he had taken Mr Easton, after he obtained his APR qualification, within a few days in August 1997 up in the Aircraft 502 on a circuit training programme to show him how to do the three point landing required for agricultural flying. Although Mr Easton only went up once with him in the 502, he alleges Mr Easton was able to practice these landing skills in the Cessna 185 which he flew during charter flights. Further in November he had provided Mr Easton with a flying helmet required as a safety precaution for crop dusting pilots. These endeavours he submits reflect his commitment to assist Mr Easton to become a crop dusting pilot. 66 The applicant submits even though there is some confusion in the evidence as to when discussions started between the insurers and Mr Smart, the applicant finished his APR training by mid-August and the insurance issue was still not resolved by late October or early November when the applicant confronted Mr Smart and Mr Smart said he had held off on insurance in order to gain leverage over the insurance company. Evidence revealed Mr Smart in October 1997 engaged a Mr Polkinghorne to help prepare submissions for the insurance company. 67 The policy reflecting Mr Easton's employment as a "ferry pilot" was not explained to the applicant as a first step in the process and Mr Smart at the time did not seem aware what this realisation had on the applicant. The applicant alleges the process entertained by Mr Smart was simply a cheap way of getting insurance and in effect delayed his obtaining his endorsement. The season for crop dusting was by then in full swing and Mr Easton was not enjoying any opportunity to use his new agricultural flying qualification or to earn better pay. He became more dissatisfied with his employment. 68 I find the delay in obtaining the full insurance cover was a significant factor leading to Mr Easton's frustration and dissatisfaction at this workplace. 69 There is a further incident relied upon as indication of an unfairness in the conduct of the contract and that is the cancellation of the applicant's rating endorsement appointment after Mr Easton's illness. Mr Smart in his affidavit affirmed he only postponed the endorsement given the pressing time considerations. This is an unusual reason as one would have expected Mr Smart to have said, given the outstanding issue, of his concern in relation to the medical condition of Mr Easton. Further Mr Smart told the applicant of this cancellation one week after the applicant had returned to work with a medical clearance. Mr Smart was clearly questioning his medical fitness. The applicant's evidence is Mr Smart said words to him to the following effect: I had every intention of endorsing you on 6 January but I am going to cancel that because I don't think you are ready for the stresses associated with ag. flying.

Later Mr Smart in cross examination said: I didn't think he had a nervous breakdown. I never said he had a nervous breakdown. . . . . Q. Is the phrase 'I understand he suffered some form of stress relating illness' correct? A. To the best of my knowledge that's all I can say.

However, after much cross-examination the third respondent admitted: Q. So he could not satisfy you with that medical certificate alone could he? A. The medical certificate probably didn't satisfy me completely, no. 70 The applicant claims a further unfairness in the performance of the contract was the requirement of Mr Smart that the applicant pay for external training when the respondent was to be the beneficiary of this training. The applicant paid $9,565 for his APR training course. It is not disputed that Clause 24 - Training - of the Pilots (General Aviation) Award 1984 relevantly provides: (a) The employer shall be responsible for providing facilities to enable pilots employed by him on permanent hire to reach and maintain proficiency in such ground courses and such aeronautical skills as are required by the employer.

(b) (i) Where the employer requires a pilot to obtain any licence, rating, endorsement, initial instrument rating or type endorsement, subject to subclause (c) of this clause, the employer shall pay all costs associated with obtaining such rating or endorsement. (ii) an employer who elects to arrange or provide training as described in paragraph (i) of this subclause for a pilot in his employ, other than at the request of that pilot and in the absence of an actual operational requirement for such training or on the understanding that it would be beneficial for the pilot's continued employment, shall offer such training in accordance with clause 49, and at no cost to the pilot.

(c) No pilot shall be required by his employer to obtain any subsequent aircraft endorsement to his licence or instrument rating in his own time or at his own expense where such endorsement or rating is required of the pilot by the employer. 71 The Pilots (General Aviation) Award 1984 is only a guide to the court and, in adopting the words of Hill J in Newton, prescribes "fair and reasonable conditions of employment". The court has regard to this particular contract and notes the contract was silent as to training. Training costs under the Pilots (General Aviation) Award 1984 are to be paid by the employer in the case of permanent employees if the employer required the training. Mr Smart says he co-operated but did not require the APR training gained by the applicant, therefore he is not responsible for the cost. The applicant was also required to take three weeks annual leave for this training. The Pilots (General Aviation) Award 1984 allows employer required training to be paid for by one employer and to be obtained in work hours. 72 As to the submission in relation to the cost of training, the respondent submits it was clear Mr Easton was happy to pay for the training and make the appropriate financial arrangements. Mr Weatherstone agreed it was not industry practice for employers in the agricultural industry to pay for such a rating. The respondents submit the Pilots (General Aviation) Award 1984 only requires when the "employer requires a pilot" to obtain any licence or rating that the payment should be made by the employer. This, the respondent submits, was not the circumstances revealed before the court. 73 The court in the circumstances before it considers all the submissions and on balance finds it was unfair to require the applicant both to pay for this training course and to complete it in his holidays. Such a requirement it finds is also against the public interest. Holidays are struck to allow workers a well earned break from employment. This is recognised in all awards and industrial instruments of every nature. The benefits of the APR training obtained by the applicant in the circumstances before the court were to have been enjoyed by the employer. The employer conceded he initiated the suggestion the applicant obtain the qualifications. Even conceding Mr Smart first raised the issue, the respondents reject the submission the employer "required" the qualification. I have found this issue the most difficult to determine. However, a contemporaneous document is persuasive. On 27 December 1997 in the grievance document, acknowledging it was written perhaps after the applicant had access to the Pilots (General Aviation) Award 1984 but at the time he returned to work, Mr Easton wrote: Agricultural rating obtained at your request. At your preferred location and time. This was written at a time when, although he had been off on sick leave, there was no indication the applicant's employment was under threat. I find at the time the rating was obtained it was the applicant's belief he was seeking the qualification at the behest of the employer. I find from the evidence this was not simply a belief expressed by the applicant following the commencement of litigation. 74 The employer from the evidence encouraged the applicant to obtain the qualifications and made all the arrangements for the applicant to attend the course. I find he made these arrangements with a promise of work to the applicant. I do not accept the worker should have been required to pay for that benefit. As the applicant became aware he was only averaging 31/2 hours flying time a week, it becomes apparent such was not sufficient to satisfy the trade-off the applicant had made for flying experience against loss of income. The employer agreed and assisted the applicant in obtaining a further qualification. The employer would have benefited from this advancement especially if I believe the evidence that a crop dusting pilot could have earned up to $150,000 and the applicant had agreed to begin as a crop dusting pilot for Mr Smart at $35,000. In consideration of all the facts I think it unfair in the performance of this contract that the cost of the course was not borne by the employer. 75 Accordingly, the court finds in a consideration of all the evidence in the performance of the contract it was unfair to require Mr Easton to use his holiday time and to expend the amount of $9,565 from his own resources on the cost of the training. 76 As to the grievances list supplied by the applicant which led to his identified concern as to this work environment the evidence of Mr Smart concedes they were not addressed: Q. Isn't it the truth the meeting was conducted between Mr Easton, Miss Davidson and yourself on 29 December and the meeting related to the admitted grievances to Mr Easton, isn't that the truth? A. To the extent he raised them, yes it was. Q. And arising out of those discussions did you do anything more? A. No.

As to any reaction in relation to complaints, the respondent submits the grievances were heard by the employer for the first time on 22 December 1997; the interview occurred on 29 December with Christmas intervening and the applicant resigned on 5 January only two weeks later. Relying on this submission, the court understands the respondent is submitting there was no time to address the issues raised. Yet the applicant continued at this workplace for the full month of January with no acknowledgment given to his expressed concerns. This comment is made while acknowledging the applicant had tendered his resignation on 5 January 1998. 77 The applicant further submits he was dismissed in circumstances where the court would find there was a constructive dismissal notwithstanding he had handed in his resignation. The principles to be applied in assessing whether there has been a constructive dismissal have been given judicial consideration. In Michael Michaelis Bayley Trading Company v New South Wales Representatives and Commercial Travellers Guild Re Dismissal 1979 AR 392, Macken J said (at 393): Just as it is a fundamental requirement for an employment contract to be entered into by the genuine consent of both parties to the contract - a consent untainted by any hint of pressure or threat - so too, it must be terminated, by a resignation equally untainted by any such threat. Where a contract is terminated otherwise it amounts to constructive dismissal. 78 In Pawel v AIRC (1999) 94 FCR 231 Dowsett J recently commented on the meaning of a dismissal "at the initiative of" the employer (an easier proposition for an employee to establish than a constructive dismissal). His Honour observed (at 243): When an employee resigns, he or she has usually reached a decision, taking into account many factors. Some may be entirely personal and unrelated to any 'misconduct' on the part of the employer. An employee may resign because he or she has been passed over for promotion, has not received a pay increase, has a more attractive job offer or, as in the present case, find aspects of his or her work uncongenial or undesirable. There can be any number of reasons for an employee to feel dissatisfaction, and there is always the possibility that it will lead to resignation. That dissatisfaction will often have been arguably caused (in part or in whole) by a decision or decisions of the employer. If 'initiative' implies only causation, it will usually be arguable that the employer has 'initiated' the termination. Although it may be good managerial practice to offer job satisfaction, it cannot be guaranteed. Many dissatisfied employees resign. . . . 79 As to the claim there is a constructive dismissal, such occurs when an employer sets out on an improper course designed to obtain the termination of the employee's contract of employment without formally dismissing the employee. It will typically arise where, as in Bayley's Case, the employee is presented with a "resign or be sacked" ultimatum. The chronology of events leading to the termination on which to construe whether there was a constructive dismissal are as follows: Mr Easton left the Northbury Pub late on Friday 12 December 1997 in a distressed state and drove to Sydney. On Monday when he had not contacted his employers who were concerned about him, they phoned his parents' home in Sydney. Mr Easton would not come to the phone. On Tuesday 16 December 1997 they again phoned Mr Easton's parents' home and were informed by Mr Easton he had "a nervous breakdown." On Monday 22 December 1997 Mr Easton on his return to work handed in two doctors' certificates - one from Allambie Medical Centre where the medical condition from which he suffered was not specified and another from Ms Hensley, a psychologist, acknowledging a psychological consultation, but the medical condition was not specified. The respondents submit as they had received no certificates from the doctors that Mr Easton was fit to fly, they were concerned. It was after that that they attempted to contact CASA to see what their position was. The facts reveal Mr Easton was not asked to supply a further medical certificate for a full week after he returned to work. Mr Easton objected but set about to obtain the required certificate. 80 A note was tendered (dated 8 January 1998) in Mr Smart's handwriting. It reveals Mr Smart had spoken to Mr Ray Feltsman of CASA and on his advice had contacted the aviation medical section in Canberra. He asked to speak to a Dr Tak Sham and was referred to Dr Danny Clenig (sic). The note says: Reported concerns about Easton as per details entered into Easton's personal file on 29 December 1997.

The note then goes further and says: "Dr Clenig (sic) agreed to act on my information and conduct an investigation". 81 As best the court can determine from the chronology, although Mr Easton returned to work on 22 December 1997, he was not asked for a medical certificate until the 29 December 1997 and the notes seem to endorse this. He was not stood down from flying until 29 December 1997 and not stood down from all duties until 8 January 1998 after he had tendered his resignation on 6 January 1998. Although the clearance came through on 14 January 1998, by this time Mr Easton had resigned. Mr Easton did not withdraw his resignation and Mr Smart did not discuss with him doing so, although during this time Mr Easton's right to fly seems to have been continually debated. 82 The applicant returned to work on 22 December and flew that week then on 29 December 1997 he was relieved of all flying duties. As to whether he was fit to return to flying duties, the applicant said: When I turned up for work my first day ... after discussing with Mr Smart the reasons for my week off, the reasons I had for listing the grievances and the reason I saw Ray Hemsley, I assured Mr Smart that I was inaccurate in my description of my medical condition and after consultation with Ray Hemsley I assured him I was right to come back to work.

He continued. Q. Go on. What happened then? A. For the next three weeks I washed aeroplanes and pushed a broom around. Q. Even though you had handed your clearance to them? A. There were three more flights approximately in that time period. Q. You were given them? A. No. Q. Did anyone have any conversation with you about why you didn't do those flights? A. I questioned Mr Smart about it and he said he was not going to fly me again." 83 I do not find there was in the circumstances a constructive dismissal of the applicant. The applicant no doubt was extraordinarily frustrated by the delay in obtaining his clearance to fly crop dusting planes having obtained the APR qualification. He was astonished to discover he was to be named as a "ferry" pilot and reacting to this and the problems associated with the incidental events, he broke down. However, having reviewed his work environment from afar and receiving advice from his de facto and a doctor and a counsellor he returned to work. There he met a series of mismanaged and staged obstacles to his return to flying. During that time he handed in his resignation. 84 The court does not find in events leading up to the resignation, a pattern of behaviour indicating an improper course of conduct by the respondents or that any real threat was adopted by the respondents towards the applicant for the purpose of acquiring the applicant's resignation. 85 The withdrawal of his endorsement appointment of 6 January the court does not find is an act in itself and alone which could establish grounds for a finding of a constructive dismissal. I do not believe the respondents' delay in obtaining the insurance cover and the endorsements represent a calculated attempt to obtain a resignation from this applicant. I do not believe the endeavours made by the employer, which were nonetheless badly handled by the employer, to satisfy himself the applicant had a medical clearance to fly, were events which can be construed as being directed towards a constructive dismissal of the applicant. Many of these bungled steps taken by the employer as to the medical certification occurred after the resignation was tendered. The applicant tendered his resignation at a time the employer was still making inquiries and had simply cancelled his endorsement appointment. I do not find there was a constructive dismissal of this applicant but rather a resignation made by the applicant who was clearly dissatisfied (see Pawel). 86 This conclusion is further endorsed by the fact the evidence disclosed after the applicant tendered his resignation on 5 January 1998 and even after the clearance to fly was obtained on 14 January 1998, there was no indication given by the applicant that he wished to withdraw the resignation. 87 Therefore there shall be no consideration as to the question of appropriate and fair notice. I find the applicant resigned his position and served out his one month's notice in accordance with that resignation. 88 The applicant claims a further financial loss he has suffered because he did not fully qualify as an agricultural pilot. Evidence reveals such pilots can earn up to $150,000 a year. However, from the evidence, the applicant did not complete all his endorsements to allow him to fly as an agricultural pilot. There was no evidence led as to his endeavours to obtain agricultural flying work to obtain those endorsements on the various planes that perform crop dusting work. I reject this part of the claim and note such a claim could only be part of the consideration as to an appropriate period of notice or a general claim for compensation that is just in the circumstances which claims the court rejects. 89 The court however has found there was an unfairness in the terms and performance of this contract as to the salary rates paid, the overtime rates paid and the training conditions applied by the employer to this applicant under the employment contract. The court finds the contract unfair and harsh. 90 As the court has found an unfairness in the contract there must be consideration as to the exercise of its discretions. As to the Court's discretion, in Port Macquarie Golf Club Limited v Stead & Anor (1995-96) 64 IR 53, the Court said (at 60): (8) If a contract or arrangement be found to relevantly offend one or more of the grounds, such as it being unfair, contained in s.275(1) then the next question involves the exercise of a discretion, to be performed judicially, as to whether the contract or arrangement should be avoided or varied: Hodges [1985] 11 IR 60 at 62-63; Autobake [1986] 19 I.R. 18 at 20; and Baker at 267. (9) If it be decided to avoid or vary the contract or arrangement under s.275(1) then a further discretion arises as to whether an order should be made under s.275(3) for the payment of money in connection with the contract or arrangement declared void or varied: Hodges at 63; Autobake at 20; and Baker at 267. 91 And as to the court's appropriate orders the Court also said (at 60): (12) The nature of the orders which may be made under s.275(3) for the payment of money cover a wide field; underlying the subsection is a broad concept of a restitution of the parties to a situation which existed before the making of the contractual arrangement as well as in an appropriate case to make remedial provision for what has taken place or been done under the contract in the meantime: Brown v Rezitis (170) 127 CLR 157 at 164 ; and Baker at 277. 92 In the circumstances before the court, I apply the court's discretion to void the contract ab initio except in respect to payments made thereunder or in relation thereto. In the use of the court's discretion the court takes the Pilots (General Aviation) Award 1984 as a guide to assist in setting a fair and appropriate wage rate for this pilot. I find the applicant, taking into account both qualifications, that is his pilot and carpentry skills, should have been paid a fair rate of $600 per week with credit for payments made from the date the applicant commenced employment. 93 The applicant worked overtime. However, the Pilots (General Aviation) Award 1984 for pilots does not allow for an overtime rate but time off after in air flying time. This circumstance does not match up with the applicant's work circumstances. The applicant worked some 400 hours overtime. I find the applicant should have been paid an overtime rate in accordance with the Pilots (General Aviation) Award 1984 of time and half at the adjusted fair rate of pay accepting the applicant worked a 76 hour fortnight before the payment of overtime with credit for payments made. 94 I also find it just in the circumstances to order reimbursement to the applicant of his annual leave holiday pay at the fair adjusted rate during which period of time he obtained his APR qualification. I further order a reimbursement for the cost of the APR Course the applicant attended of $9,565.00. 95 The respondent acknowledges the applicant is entitled to an adjustment for the three days the applicant was stood down from all duties after he resigned and I find it just in the circumstances to order payment for these days at the fair adjusted rate. 96 As to the question of interest I accept the reasoning of Schmidt J relying upon the judgment of Bauer and Hungerford JJ in Thomas Nationwide Transport Ltd v Thomas & Anor (1990) 34 IR 378 (at 383 and 390-394 respectively) and Barwick CJ Brown v Rezitis (1971) 127 CLR 157 (at 165) in Abboud v The State of NSW (Dept of School Education)(No 2) [2000] NSWIRCom 110 (unreported, 30 June 2000) which reasoning was accepted by the majority in Abboud on consideration as to their orders. I find: . . .the awarding of an interest component is a matter of discretion to be exercised in the particular circumstances of the case in order to discharge the statutory duty, now arising under s106(5), to make a monetary order in connection with the contract varied, 'just in the circumstances of the case'. . . . (See Abboud at para 45 to 47 Schmidt J). 97 I take into account there were discussions as to salary with Mr Smart while the applicant was at work and Mr Smart acknowledged those discussions. However from the evidence the other claims as to the cost of training, holiday pay, overtime rates and stand down pay which have attracted court orders were not discussed with the employer before resignation. I do not accept that interest should be ordered from the date the contract has been void ab initio that is the date the applicant commenced work - but I find it just in the circumstances to order interest as to all payments from the date of filing of the summons outlining the claims. 98 The court orders interest be paid on all monies under s94 of the Supreme Court Act 1970 at the rates applicable from time to time from the date of the filing of the summons until the date of judgment. 99 I do not accept the respondent's submission that orders should lie against only the second named respondent as the named employer. The respondents submit that there should be no orders except as against the first respondent who was the employer on the group certificates, who paid the applicant by cheque and with whom the contract for employment was made. The evidence however reveals the named respondents are interlinked. Both the first and second respondent companies were operated by Mr Smart, the third named respondent and the evidence reveals the applicant performed duties for both companies such as work as a charter pilot, general labouring duties, skilled carpentry work, and support for the crop dusting pilots. Mr Smart clearly operated both companies. The court makes orders against each respondent. 100 In accordance with the above findings there shall be costs in favour of the applicant. 101 The parties have agreed and the court gives leave for the parties to file Orders reflecting these findings within 14 days with leave to re-list on 24 hours notice if there is dispute as to the findings to be reflected in the orders.

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