Australian Federation of Air Pilots

[2018] FWC 2624

[2018] FWC 2624

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act—Rules of organisations

Australian Federation of Air Pilots
(D2017/12)

SENIOR DEPUTY PRESIDENT HAMBERGER SYDNEY, 18 JUNE 2018

Application for alteration of eligibility rules – threshold issue – whether there was a relevant quorum –insufficient votes in favour of alteration – application dismissed.

[1] The Australian Federation of Air Pilots (AFAP or the applicant) applied on 23 November 2017 to alter its eligibility rules. The application seeks to add a sub-section (c) to Rule 2.1 of the AFAP’s Rules, in the following terms:

‘(c) Without in any way limiting the generality of any other provision of this rule or being limited thereby, the following persons shall be eligible for membership:

(i) any person who is normally employed or seeking to be employed as a pilot on airline services within or extending beyond the Commonwealth of Australia operated by an Australian airline; and

(ii) any person who, being an independent contractor, would if as an employee performing the work of the kind they usually perform as an independent contractor, qualify for membership in accordance with this Rule.’

[2] Notice of the application was published in the Commonwealth of Australia Gazette on 15 December 2017, advising that any notice of objection must be lodged no later than 35 days after the date of publication.

[3] The following parties (collectively, the objectors) filed objections to the application:

•  the Transport Workers’ Union of Australia (TWU);

•  the Australian and International Pilots Association (AIPA);

•  Qantas Airways Limited (Qantas); and

•  the Australian Council of Trade Unions (ACTU).

[4] I held a directions hearing on 16 February 2018. Following that hearing, I issued directions for the applicant and each objector to file submissions and evidence in relation to two ‘threshold issues’. They were:

(i) whether the ACTU has standing to object to the application; and
(ii) whether there was a relevant quorum at the meeting the applicant held to determine whether to make the alteration to its Rules.

[5] The ACTU withdrew its objection to the application on 29 March 2018.

[6] I subsequently held a hearing on 27 April 2018 to deal with the remaining threshold issue. By the hearing date, it had become apparent that the real issue in dispute was not whether there was a quorum at the meeting, but whether there were sufficient votes in favour of the alteration to determine that the Rules should in fact be altered.

[7] C Dowling SC appeared with J Fetter of counsel for the applicant. S Robertson of counsel appeared for the AIPA. K Srdanovic, solicitor, appeared for Qantas with E Haggerty. W Carr appeared for the TWU.

The applicant’s rules

[8] The applicant has a federal structure. Under Rule 4, it has nine constituent Councils: Virgin, Jetstar, Eastern, Sunstate, Rex, Cobham, National, Helicopters, and Tiger.

[9] Under Rule 7, the supreme governing power of the AFAP is vested in the Convention, which consists of all the elected representatives from each Council Committee, as laid down in Rule 5.8(a). The number of representatives entitled to vote at the Convention varies according to the size of the membership of each Council:

‘(iv) Convention Representative(s) in accordance with the following:

Membership	No. of Representatives
Less than 100	1
100 up to but not incl. 200	2
200 up to but not incl. 400	3
400 up to but not incl. 600	4
600 up to but not incl. 800	5
800 and above	6

[10] Rule 5.8(c) states:

‘Duly elected representatives to Convention may appoint a proxy to be carried by a pilot from their council to attend in person.’

[11] Rule 5.7(a) states:

‘Questions arising at any Council Committee Meeting shall be decided by a majority of votes of those Committeemen or proxies present at such meeting.’

[12] Rule 5.13 states:

‘DUTIES OF COUNCIL REPRESENTATIVES TO FEDERATION CONVENTIONS

The Council Representatives elected to the Convention or the appointed Proxy shall, as members of the supreme governing body of the Federation be charged with the responsibility of expressing the views of their Council Committee on all questions arising at Conventions, and each shall be eligible to cast his vote on any question when required. They shall also ensure that their Council Committee is kept fully advised on all policy matters decided at Conventions.’

[13] Rule 7.5 states:

‘REPRESENTATION AND PROXIES

(a) At any Convention it is desirable that proper representation is accomplished in accordance with these Rules and the use of proxies shall be limited to –

One duly appointed proxy per Council Committee, which may be issued only for good and sufficient cause. E.g.

(i) a member’s incapacity to attend as a result of illness

(ii) a member’s family illness or bereavement

(iii) a member absent from home on vacation

(iv) a member absent from home on duty who was unable to be relieved from that duty.

(b) Each proxy must be in writing addressed to the President and shall state the cause of the elected representative’s non-attendance.

(c) All proxies at Convention shall be declared at the first Agenda Item after the opening of the Convention and subsequently on each day of the Convention.

(d) The President shall on presentation of proxies check each one and ensure that it complies absolutely with the intent of this rule.

(e) The President shall rule as to the validity of a proxy, but his ruling shall be subject to ratification by the Convention.’

[14] Rule 7 provides that the Federal President, Vice-Presidents, Safety and Technical Director and Welfare Director are ex-officio members of the Convention, but may only vote on points of order or procedure, unless they are also a duly-elected representative of a Council Committee. Rule 7.8(d) provides that with this limited exception, voting at Conventions shall be carried out exclusively by the duly-elected representatives of the Council Committee, or their proxies, but proxies may not cast more than three of a Council’s vote entitlement in the absence of full representation. This in effect penalises a Council if less than the full complement of its duly-elected representatives attends the Convention. Rule 7.7 provides that the quorum for Conventions is three-quarters of all ‘accredited voting members or their proxies’.

[15] Rule 1.12 states:

‘PROXIES

Representation of all members of the Federation at any duly convened meeting of the Members of the Convention, Executive Committee, and Council Committees, is mandatory. Elected representatives may be considered as acting against the best interests of the Federation if they fail to represent or arrange for representation of their constituents without reasonable grounds. Proxies at any Federation meeting shall be used only in a manner specifically provided for in the Constitution.’

[16] Rule 1.14 includes the following:

‘14. AMENDMENTS TO CONSTITUTION

…

(b) Not less than twenty one days notice in writing of any proposed alteration, amendment, addition, to or repeal or repeal of the objects, Constitution, or Rules of the Federation shall be given to all Council Committees and no such alteration shall be effective unless agreed to by a majority representing at least two thirds of the total votes available to all Councils and Officers entitled to vote at Convention.’

(c) Convention shall have the power to amend any proposed alteration, amendment or addition to the Constitution provided that, such amendment does not alter or change the intent or purpose of the proposed rule change and further, that the amendment is agreed to by a majority representing at least two thirds of the total votes available to all Councils and Officers entitled to vote at Convention.

…

(e) Notwithstanding anything elsewhere contained in these Rules, the Federation shall not, unless such action is agreed to by a fifty per cent majority of financial members who exercise their voting right, become joined with, registered under or affiliated with any other organisation. Any vote taken on the question of such action shall be by secret ballot and the minimum elapsed time from ballot initiation to ballot closure shall be forty-two days. Persons eligible to vote in such ballot shall be those who are financial members on the day on which the roll of voters is prepared.’

The evidence

[17] The applicant filed a statement by its Executive Director, Simon Lutton. Mr Lutton was not required for cross-examination. The following is based on Mr Lutton’s evidence.

[18] The AFAP held a meeting of the Convention on 6 October 2017.

[19] Proposed alterations to the AFAP Rules are traditionally called ‘working papers’ within the AFAP. The final working papers, including Working Paper No. 1, which contained the proposed alteration to the AFAP’s eligibility rules the subject of this application, were distributed to all Council Committees (including all Convention representatives) on 11 September 2017.

[20] The total number of duly-elected Convention representatives across the nine AFAP Council Committees is 32. The number of Convention representatives or their proxies declared present on 6 October 2017 was 25. Specifically:

•  Virgin Council did not have full representation and had three votes available;

•  Jetstar Council did not have full representation and had one vote available;

•  Eastern Council had full representation and had two votes available;

•  Sunstate Council had full representation and had three votes available;

•  Tiger Council had full representation and had two votes available;

•  National Council had full representation and had six votes available;

•  Helicopter Council did not have full representation and had three votes available;

•  Rex Council had full representation and had three votes available; and

•  Cobham Council had full representation and had two votes available.

[21] It was determined at the Convention that in order to approve an alteration to the eligibility rules as proposed in the working papers sent out on 11 September 2017, a minimum of two-thirds of the 25 Convention representatives or their proxies declared present would need to vote in favour of the alteration. Two-thirds of 25 is 16.66. It was therefore determined that a minimum of 17 votes in favour of a working paper would be needed in order for the proposed rule alteration to be effective.

[22] Working Paper No. 1 was put to a vote via a show of hands. The working paper received 17 votes in favour.

Consideration

[23] The issue to be determined is whether the 17 votes in favour were sufficient effectively alter the AFAP’s eligibility rules. This turns on the correct interpretation to be given to ‘the total votes available to all Council and officers entitled to vote at Convention’, as found in Rule 1.14(b).

[24] The applicant submits that ‘the total votes available to all Councils and Officers’ refers to the votes available to those duly-elected Convention representatives or their proxies actually present at the Convention, i.e. 25 in total. The objectors submit that it refers to all 32 duly-elected Convention representatives, including those who did not actually attend the Convention.

[25] If the applicant’s construction is correct, then the 17 votes cast in favour of the alteration to the eligibility rule were sufficient for it to be effective. If the objectors are correct, there would need to have been 22 votes in favour for the alteration to be effective.

[26] The applicant submitted that the objectors’ construction is impractical, not in accordance with the principles for interpreting union rules and inconsistent with the balance of the Rules.

[27] The applicant outlined what it said are three guiding principles as to the interpretation of union rules. The first is that the relevant words are to be given their ordinary meaning, unless, when read in context and with an eye to its evident purpose, there is a basis for concluding that something other than the ordinary meaning was intended. 1

[28] The second principle the applicant refers to is that the rules of a union should be given ‘a sensible and practical construction’. 2

[29] The third principle is that rules should be given a ‘very broad’ interpretation, rather than a technical or narrow one, given that they are not necessarily drafted by lawyers. 3

[30] The applicant submitted that the ordinary meaning of the word ‘available’ is ‘able to be used or turned to account; at one’s disposal; within one’s reach; obtainable’. 4 The Rules prescribe the circumstances in which particular Councils and Officers may vote (personally or by proxy) at particular meetings of the Convention.

[31] The applicant submitted that Rule 1.14(b) does not set the voting bar as a proportion of the membership of the Convention, but refers to the ‘votes available’ to the membership, which may be lower at a particular Convention than there are members.

[32] Attendance and participation at Conventions is encouraged, particularly by the provision that Councils that do not send full representation lose some of their voting entitlement.

[33] The applicant submitted that if the construction preferred by the objectors was correct, this could have been expressed simply:

‘If it was intended to be the full membership of the Convention, that could have been expressly said, and indeed a cross-reference made with 5.8(a)(iv), that part that sets out what constitutes full representation, that could easily have been done’. 5

[34] The applicant submitted that the objectors’ construction puts an emphasis on the preposition ‘to’ and fails to have regard to the balance of the sentence and Rule 7.8.

[35] Finally, the applicant rejected the proposition that its construction of Rule 1.14(b) created a risk that decisions would be made without the appropriate level of participation, referring to the requirement for a quorum of 75 per cent, and the penalty that applies to Councils who fail to send their full representation.

[36] By contrast, the objectors’ construction would have required two-thirds of 32. i.e. 22 votes out of the 25 present at the meeting, which would be 88 per cent of the votes present. In the applicant’s view, this would not be practical or sensible:

‘It’s a strict interpretation and it’s not approaching the union rules as they should be approached.’ 6

[37] The three principles for construing union rules to which the applicant refers are correct. However, I do not consider that they lead to the construction of Rule 1.14(b) for which the applicant contends.

[38] In my view, the most natural construction of Rule 1.14(b), having regard to the Rules as a whole, is that the expression ‘the total votes available to all Councils and Officers entitled to vote at Convention’ refers to the entitlement to vote at the Convention established by Rule 5.8(a)(iv).

[39] This is consistent with the ordinary meaning of the relevant words. The Councils each have ‘available’ to them the votes provided by Rule 5.8(a)(iv). Where the Rules refer elsewhere to votes requiring a particular proportion of those present at the relevant meeting, they say so expressly. Thus, Rule 5.7 concerning Council Committees states:

‘Questions arising at any Council Committee Meeting shall be decided by a majority of votes of those Committeemen or proxies present at such meeting’. [my emphasis]

[40] If Rule 1.14(b) had intended to provide that alterations to the Rules themselves needed only the agreement of two-thirds of those representatives present at a meeting of the Convention, and not two-thirds of all duly-elected representatives (whether present or absent), I think it would have used similar wording to Rule 5.7.

[41] I consider that my preferred construction of the Rules is both practical and sensible. There are a number of features in the Rules designed to ensure maximum attendance at meetings of the Convention. Indeed, Rule 1 expressly provides that representation of all members of the AFAP at meetings of the Convention is ‘mandatory’. There are significant restrictions placed on the use of proxies. The quorum for the Convention is set at 75 per cent. There are also penalties for Councils who fail to send their full complement of representatives. If all elected representatives had complied with their obligation to attend the meeting of the Convention (or send a proxy), alterations to the Rules could have been approved by the votes of only two-thirds of those attending.

[42] This does not amount to a ‘strict’ or ‘technical’ interpretation. It simply recognises that there should be a high hurdle for alterations to the Rules. If the applicant’s construction were correct, it would mean that something as significant as the change proposed in this case –which could significantly expand the applicant’s membership – could be approved by just over 50 per cent of the supreme governing body. This would be inconsistent with the general thrust of the Rules which, as Mr Robertson put it, places a significant premium on ‘participatory democracy’. 7

Conclusion

[43] The proposed alteration to the applicant’s eligibility rules was not agreed to by a majority representing at least two-thirds of the total votes available to all Councils and Officers entitled to vote at the Convention. It therefore does not comply with the requirements of Rule 1.14(b) of the applicant’s Rules. I dismiss this application.

SENIOR DEPUTY PRESIDENT

Appearances:

C Dowling SC with J Fetter of counsel for the Australian Federation of Air Pilots.

S Robertson of counsel for the Australian and International Pilots Association.

K Srdanovic, solicitor, with E Haggerty for Qantas Airways Limited.

W Carr for the Transport Workers’ Union of Australia.

Hearing details:

Sydney with video link to Melbourne.

2018.

April 27.

Printed by authority of the Commonwealth Government Printer

<PR606973>

 1   Resmed Ltd v Australian Manufacturing Workers’ Union and Anor (No 2) [2017] FCAFC 14 [14].

 2   Ibid.

 3   Amalgamated Society of Engineers & Ors v Smith (1913) 16 CLR 537, 559; R v Holmes & Ors; ex parte Public Service Association of New South Wales & Anor (1977) 140 CLR 63, 73; Re Election for Office in Transport Workers Union of Australia (Western Australian Branch) (1992) 40 IR 245, 253.

 4   Shorter Oxford English Dictionary (6th ed).

 5   PN118.

 6   PN136.

 7   PN228.