How much alcohol is too much on a night out in New York … when you have to work the next day?

An interesting unfair dismissal case (which I recently enjoyed discussing with my JD labour law students) is heading to a Full Bench of the Fair Work Commission (FWC) on appeal.

Qantas flight attendant, Luke Urso, was dismissed from his employment in November 2017 after an investigation into alleged misconduct.

The company’s investigation found that he had breached Qantas policies by consuming excessive alcohol at a rooftop bar while ‘on slip’ in New York, and being unable to perform duties on a flight back to Los Angeles the following day. Mr Urso had collapsed and been transported from the bar to Greenwich Hospital by ambulance.

A significant question at issue in the case was precisely how much alcohol he had consumed at the bar. Mr Urso maintained that he had a maximum of five cocktails, and that he considered himself able to drink that quantity without compromising his ability to perform duties the next day.

However, he recorded a blood alcohol reading of 0.205 during his time at the hospital. He argued that his drink(s) may have been spiked at the bar and/or that the bar does not measure its shots but ‘free pours’. For these reasons, he disputed that he had consumed an excessive amount of alcohol and therefore breached company policies.

However, at first instance, Deputy President Dean of the FWC determined that it was ‘clear’ that Mr Urso ‘drank a sufficiently large quantity of alcohol to record a BAC of 0.205% some three hours after his last alcoholic drink … in circumstances where he knew the importance of reporting for duty at the requisite time’ (Urso v QF Cabin Crew Australia Pty Limited T/A QCCA [2018] FWC 4436: https://www.fwc.gov.au/documents/decisionssigned/html/2018fwc4436.htm at para 172). The Deputy President referred to medical evidence at hearing indicating it was likely Mr Urso had consumed approximately 14 standard drinks, although no clear finding could be made as to the precise amount of alcohol he had consumed. His conduct was found to be in breach of company policies, preventing him from performing his next operational duty, and therefore a valid reason for dismissal.

Mr Urso lodged an appeal against this outcome, and this week an FWC Full Bench decided to grant him leave to appeal. The Full Bench determined that it is at least arguable that Deputy President Dean, while rejecting Mr Urso’s claim about drink spiking, did not make any finding on the possibility of ‘free pouring’ as an explanation for his high alcohol intake (this claim had simply been dismissed as implausible). According to the Full Bench:

‘The ‘free pouring’ submission was a central element of Mr Urso’s case and provides a foundation for an arguable case of appealable error if it was not addressed below. We accept that it is at least arguable that the Deputy President should have made a finding as to how Mr Urso came to consume the equivalent of 14 standard drinks on the basis that there was ‘an unchallenged innocent explanation’ and should have taken such a finding into account in assessing whether Mr Urso’s dismissal was harsh, unjust or unreasonable. This might merit attention by way of appeal.’ (Urso v QF Cabin Crew Australia Pty Limited T/A QCCA [2018] FWCFB 6370: https://www.fwc.gov.au/documents/decisionssigned/html/2018fwcfb6370.htm at para 39)

This case also addresses the question of employer controls over the out-of-hours conduct of employees. In the specific context here, there are previous decisions recognising the rights of Australian airlines to regulate the behaviour of employees on ‘slip time’ in foreign ports, due to the safety-critical nature of this work.

However the decision at first instance is consistent with the steady march of case law – embodied in decisions like Streeter v Telstra Corporation [2008] AIRCFB 15 – allowing employers to discipline or dismiss employees where conduct outside work hours or the workplace damages the interests of the business. Workplace policies have been instrumental in extending the reach of employer control, coupled with long-standing implied terms imposing obligations on employees at common law.

The Full Bench decision on the merits of Mr Urso’s appeal will be eagerly awaited.

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#changetherules & ‘Australia needs a pay rise’ rallies – what are they all about?

Today, the Australian Council of Trade Unions (ACTU) held large protest rallies in Melbourne, Sydney and other cities as part of a program of protests occurring around the country this month. The union movement is seeking to highlight its concerns about various inter-connected issues: wage stagnation, insecure work, exploitation of vulnerable workers through ‘wage theft’ and the nature of Australia’s regulatory framework for the relationship between businesses, workers and unions.

Under the banners of ‘Australia needs a pay rise’ and #changetherules, the ACTU argues that the Fair Work Act 2009 provides insufficient support for unions to do their job: organising and representing workers, and bargaining to improve pay and conditions. For the union movement, while the legislation does enable collective bargaining to occur, there are too many impediments: limits on their access to work sites, procedural and substantive ‘hoops’ to jump through in order to take strike action, and a focus on bargaining at the level of the individual ‘enterprise’.

The last of these is a particular bug-bear, as unions argue the economy has changed fundamentally since enterprise bargaining was introduced in the early 1990s. Capital has constantly re-invented itself through a range of complex business models, so unions want to be able to bargain across newer incarnations such as franchise structures, supply chains and ‘gig economy’ platforms.

For employers and the business community, unions have all the legislative rights they need (the Fair Work Act was, after all, introduced by the last Labor Government and has been amended very little in the last ten years). Despite this, business groups contend, private sector union membership in Australia has fallen to below 10% so workers are voting with their feet when it comes to joining unions.

As we head towards the 2019 federal election, the current debate around workplace reform in Australia is shaping up to be as significant as the last major contest of ideas in this area: the ACTU’s ‘Your rights at work’ campaign of 2006-07, and the change of government which it precipitated following the Howard Government’s radical Work Choices experiment.

I’ll use this blog to examine the issues more closely as the debate unfolds over coming months …