Australian Aircrew Officers Association Group

[2013] FWC 6842

[2013] FWC 6842

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.18(b) RO Act - Application for registration by an association of employees

Australian Aircrew Officers Association Group
(D2013/117)

VICE PRESIDENT WATSON SYDNEY, 13 SEPTEMBER 2013

Application for registration as an association of employees - whether federally registrable association of employees - criteria for registration - genuine association of employees - Fair Work (Registered Organisations) Act 2009 - ss. 18, 18B, 19.

Introduction

[1] This decision concerns an application by the Australian Aircrew Officers Association Group (AAOAG) for registration as an organisation of employees. The application is made pursuant to s.18(b) of the Fair Work (Registered Organisations) Act 2009 (the Act). It was made on 21 May 2013, and published in the Government Gazette on 2 July 2013.

[2] Objections to the application were received from the Australian and International Pilots Association (AIPA), Australian Municipal, Administrative, Clerical and Services Union (ASU) and the Virgin Independent Pilots Association (VIPA).

[3] The matter was listed for hearing on 5 September 2013. Mr J Nolan of counsel appeared for the AAOAG, with Mr K Bolwell appearing for the AIPA.

Background

[4] AAOAG is an association seeking to represent flight crew officers employed by Cathay Pacific Airways Ltd. Its eligibility rules are as follows:

“5. ELIGIBILITY FOR MEMBERSHIP

(a) The following persons are eligible for membership of the Association:

i) any person who is employed by Cathay Pacific Airways Ltd as a flight crew officer and who is engaged, or usually engaged:

(1) in or in connection with Australia;

(2) in Constitutional Trade or Commerce by virtue of flights between Australia and a place outside of Australia

ii) any person, who, being an independent contractor, would if as an employee performing the work of any kind they usually perform as an independent contractor, qualify for membership in accordance with sub-rule i); and

iii) any person who is an Officer of the Association.

(b) Notwithstanding sub-rule a) any member of the Association, whose employment with Cathay Pacific Airways Ltd as an Aircrew Officer is terminated, may retain membership for either the period equalling the notice of termination given to the member or six (6) months, whichever is the greater.

(c) Provided that if the termination of the members’ employment is contested by the member, then the period of membership arising from sub-rule b) may be extended beyond the period provided by sub-rule b) by determination of the General Committee for the period the General Committee considers appropriate.

(d) For the purpose of this rule:

i) “Cathay Pacific Airways Ltd” includes its assigns, successors, or any entity created as a consequence of a merger, sale or restructure of any kind and also includes any subsidiary or associated or related entity of any description that is controlled by or operated for the benefit of Cathay Pacific Airways Limited or any of its subsidiaries, assigns or successors; and

ii) “flight crew officer” means a person who performs (whether with or without other duties) duties as a pilot, navigator or flight engineer of aircraft, and includes a person being trained for the performance of such duties.”

[5] The objections from AIPA, the ASU and VIPA were based on overlap between the eligibility rules of AAOAG and the objecting organisations. Following negotiations between the parties, each of the objections were resolved. Undertakings were given by and to the AIPA, ASU and VIPA. I consider that these undertakings meet the requirements of s.19(2) of the Act, as they are appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the AAOAG and the eligibility rules of the other organisations.

[6] In order for the Commission to register AAOAG as an organisation of employees, it must meet certain legislative criteria. In view of the undertakings that were given I enquired of the applicant’s counsel whether the proper legislative basis was that applying to enterprise associations or the scheme applying to employee associations more generally. After taking instructions he confirmed in a written submission that the applicant makes its application as an employee association and wishes its application to be considered under the provisions relating to such associations.

The legislation

[7] Section 18B of the Act sets out when an association of employees is a federally registrable association. Section 19 sets out when the Commission must register a federally registration association of employees:

“19 Criteria for registration of associations other than enterprise associations

(1)  The FWC must grant an application for registration made by an association (other than an enterprise association) that, under section 18, may apply for registration as an organisation if, and only if:

(a)  the association:

(i)  is a genuine association of a kind referred to in paragraph 18(a) or (b); and

(ii)  is an association for furthering or protecting the interests of its members; and

(b)  in the case of an association of employees--the association is free from control by, or improper influence from, an employer or by an association or organisation of employers; and

(c)  in the case of an association of employers--the members who are employers have, in the aggregate, throughout the 6 months before the application, employed on an average taken per month at least 50 employees; and

(d)  in the case of an association of employees--the association has at least 50 members who are employees; and

(e) the FWC is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and

(f)  the rules of the association make provision as required by this Act to be made by the rules of organisations; and

(g)  the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

(h)  a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

(i) the registration of the association would further Parliament's intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act; and

(j)  subject to subsection (2), there is no organisation to which members of the association might belong or, if there is such an organisation, it is not an organisation:


(i)  to which the members of the association could more conveniently belong; and

(ii)  that would more effectively represent those members.”

Criteria for registration

[8] On the basis of the material before me I am satisfied that the applicant is a genuine association of employees, it is free from control or improper influence from the employer, it has at least 50 members, its rules comply with the requirements of the Act, there is no other registered organisation to which the members might conveniently belong, and all of the other criteria for registration are satisfied.

Conclusion

[9] As I am satisfied that the grounds for registration are satisfied I will grant the application. The association will be registered with effect from 1 October 2013.

VICE PRESIDENT WATSON

Appearances:

Mr J Nolan, of counsel for the Australian Aircrew Officers Association Group

Mr K Bolwell for the Australian and International Pilots Association

Hearing details:

2013.

Sydney

September

5

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