Jacquie Seemann

Lessons from the check-in counter: the perils and pitfalls of agreements that are never quite agreed

Jacquie Seemann

12 January 2015

Employment Contracts Employment Disputes

If you are considering management of your employment arrangements for the year ahead, it is worth reflecting on the lessons that can be learnt from an appeal case heard by the Western Australian Industrial Relations Commission at the end of last year.

The case, Qantas Airways Limited v Joyce and Gartside [2014] WAIRC 01192, reminds employers of the importance of putting critical employment terms in writing before the relevant employment arrangements commence.


In this case, the Commission considered whether a job-sharing arrangement was permanent and ongoing (as claimed by the two employees involved) or whether the arrangement was in fact a fixed-term secondment (as maintained by Qantas).


The secondment began in 2008 when two existing part-time Qantas customer service employees at Perth Airport applied for a secondment to a full-time role on the basis that they would job-share to work the required hours. They attempted to negotiate for the role to be permanent. Qantas opposed this and offered them a four and a half year term dependent on the success of a six month trial. The parties did not reach a written agreement before the arrangement began in February 2008, or in fact at any later time. In May 2008, Qantas gave the employees letters setting out the terms that it considered governed the arrangement, but the employees never signed these.


In 2012, the employees were invited to re-apply for the secondment as (in Qantas’s view) the arrangement was due to expire. The employees again argued that the position was permanent, but Qantas was adamant that it was not. It did, however, agree to extend the term twice – ultimately until October 2013. The employees then brought a claim in the Commission seeking to stop Qantas ending the arrangement.


During the initial hearing, the employees argued that custom and practice created an implied term that the arrangement was permanent. This argument was successful at first instance. On appeal, however, the Full Bench led by Acting President Jennifer Smith disagreed, stating that:


‘to satisfy the test for implication of a term on grounds of custom and usage, the evidence must establish that the practice relied upon is uniform, notorious, reasonable, certain and that the standard of proof required to establish a custom is high.’


There were only two prior job-share agreements at the airport, which the Full Bench found to be insufficient to create a relevant ‘custom’. The Full Bench also rejected the employees’ arguments that a ‘customary context’ was created by the existence of such arrangements at other airports and a Heads of Agreement dealt with a different kind of job-share.


Further, the fact that the employees had repeatedly challenged the alleged fixed period of the job-share arrangement did not alone make it ongoing.


In these circumstances, the Full Bench held that Qantas was entitled to vary the arrangement unilaterally, based on the terms of the employees’ previous (2004) contracts.


Of course, the situation would have been very different if the parties had agreed in writing on the terms of the job-share before it began – and in particular, the termination provisions that applied. This is a lesson not only for job-share arrangements, but in fact for all employment arrangements.


Whether you are considering employing a new staff member, or changing the terms of an existing staff member’s engagement – including international secondments and part-time arrangements when employees return from parental leave – resist the temptation to let the arrangement begin before the agreement as to its terms has been properly documented. The paper on which that agreement is written may turn out to be worth a great deal at some point down the track…