Australian Federation of Air Pilots
[2024] FWCD 1069
•20 DECEMBER 2024
| [2024] FWCD 1069 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Federation of Air Pilots
(R2024/174)
| CHRIS ENRIGHT | MELBOURNE, 20 DECEMBER 2024 |
Alteration of other rules of organisation.
On 20 November 2024 the Australian Federation of Air Pilots (AFAP) lodged with the Fair Work Commission (the Commission) a notice and declaration setting out particulars of alterations to its rules. Further information in support of the alterations was provided on 16 December 2024.
The AFAP seeks certification of the alterations under section 159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
On the information contained in the notice, declaration and additional information supplied, I am satisfied the alterations have been made under the rules of the organisation.
The particulars set out alterations to Sub-rules 1.15, 6.5, 7.1, 7.4, 7.8, 8.5, 12.7, 21.29 and 26.3, and to Rule 13.
The amendments (except those to Sub-rule 1.15 and Rule 13) are made to:
·clarify the voting rights of Trustees and allow them to sit on the Convention;
·ensure consistency of language;
·allow the provision of electronic notice for certain special meetings of the Convention and Executive Committee;
·identify procedural motions and who can vote for them;
·change the time frame for returning ballot papers in federal elections; and
·clarify the deadline for providing nomination and recommendation reports for the Harold Rowell Award for Airmanship.
The above alterations are uncontroversial. They do not require comment beyond expressing my opinion about the matters set out in subsection 159(1) of the Act.
Workplace delegates
The amendments to Sub-rule 1.15 and Rule 13 introduce new provisions in relation to workplace delegates. The changes appear to have been made in connection with the newly introduced legislative provisions regarding workplace delegates, contained at sections 350A, 350B and 350C of the Fair Work Act 2009 (Cth) (FW Act). The FW Act defines the term ‘workplace delegate’ and sets out the rights and protections for these delegates. Among other things, I am required to consider whether the alterations comply with and are not contrary to the FW Act.[1]
In three recent decisions I have considered rules regarding workplace delegates and the relevant provisions in the FW Act.[2] In these decisions, I determined that:
· the word ‘delegate’ in a rulebook can have a different meaning to the definition of a ‘workplace delegate’ as contained in the FW Act, depending on the context of the rule;[3]
· the meaning and application of the proposed rules regarding delegates must be confined to the relevant statutory scheme;[4]
· rules regarding workplace delegates must not undermine the statutory scheme set out in the FW Act; [5]
· a workplace delegate (as defined in the FW Act) must be interpreted as a person who works in the enterprise or regulated business;[6]
· rules must not purport to extend workplace delegate rights or obligations to persons who would not be so entitled under the FW Act; [7] and
· rights endowed by a union on workplace delegates can only be rights regulating their relationship with the union, and cannot extend to parties external to the union.[8]
While keeping these principles in mind, I turn to the proposed alterations.
Proposed new Rule 13 sets out the definition of a workplace delegate (being a financial and eligible member of the AFAP appointed to represent interests of members in their workplace) and the procedures for their appointment, revocation and resignation. The rule also details the responsibilities around maintaining the list of current workplace delegates. Sub-rule 1.15 has been amended to include workplace delegates among the group of people who are afforded financial indemnity.
The definition of a workplace delegate in these alterations aligns with the definition in FW Act, in so far as the delegate represents members at their workplace. The alterations do not extend the rights and obligations contained in the FW Act to persons who would not be so entitled under the FW Act itself. The rights and obligations endowed on the Delegates in these alterations regulate their relationship with the AFAP and do not extend to parties external to the union.
In my opinion, the alterations to Sub-rule 1.15 and Rule 13 do not undermine the statutory scheme regarding workplace delegates, and are therefore not contrary to the FW Act.
In my opinion, the alterations comply with and are not contrary to the Act, the FW Act, modern awards and enterprise agreements, are not otherwise contrary to law and were made under the rules of the organisation. I certify accordingly under subsection 159(1) of the Act.
DELEGATE OF THE GENERAL MANAGER
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[1] Subsection 159(1) of the Act provides that:
An alteration of the rules (other than the eligibility rules) of an organisation does not take effect unless particulars of the alteration have been lodged with the FWC and the General Manager has certified that, in his or her opinion, the alteration:
(a) complies with, and is not contrary to, this Act, the Fair Work Act, modern awards and enterprise agreements; and
(b) is not otherwise contrary to law; and
(c) has been made under the rules of the organisation.
[2] Re Independent Education Union of Australia[2024] FWCD 1019, Re Australian Municipal, Administrative, Clerical and Services Union[2024] FWCD 1042 and Re National Tertiary Education Union [2024] FWCD 1051.
[3] Re Australian Municipal, Administrative, Clerical and Services Union[2024] FWCD 1042 at [16].
[4] Re National Tertiary Education Union [2024] FWCD 1051 at [9].
[5] ReIndependent Education Union of Australia[2024] FWCD 1019 at [18].
[6] Ibid at [37].
[7] Ibid at [18].
[8] Re Australian Municipal, Administrative, Clerical and Services Union[2024] FWCD 1042 at [22].
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