Australian Federation of Air Pilots
[2024] FWCD 1002
•7 FEBRUARY 2024
| [2024] FWCD 1002 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.159—Alteration of other rules of organisation
Australian Federation of Air Pilots
(R2023/106)
| CHRIS ENRIGHT | MELBOURNE, 7 FEBRUARY 2024 |
Alteration of other rules of organisation.
On 20 October 2023 the Australian Federation of Air Pilots (the Federation) 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 application was provided on 9 November 2023, 21 November 2023 and 25 January 2024.
The Federation seeks certification of the alterations under s.159 of the Fair Work (Registered Organisations) Act 2009 (the Act).
The particulars set out alterations to the following Federation Rules:
1 – General
2 – Membership
4 – Councils
6 – Executive Committee
8 – President
9 – Vice-President
11 – Trustees
12 – Conduct of Elections
14 – Safety & Technical Director
15 – Welfare Director
The particulars additionally insert two new rules,
Rule 16 – Welfare Representative; and
Rule 17 – HIMS Peer Monitor.
In light of the alterations and insertions, rule references and numbers in the rulebook have been modified and renumbered.
On the information contained in the lodgement materials and further information provided, I am satisfied the alterations have been made under the rules of the organisation.
The alterations fall into three broad categories.
Firstly, the alterations to Rules 1, 2, 4(1)(1)(a), 4(1)(1)(j), 6(3)(d), 8, 9, 11, 12(3), 14, 15 and the insertion of Rules 16 and 17 are technical changes. They:
insert “emailed” in the definition of “in writing”;
clarify fee-free associate membership conditions for Cadet/Student members;
rename the “Qantas Mainline Council” as “Qantas Council”;
add “videoconference” as an approach for Council Committee meetings and Executive Committee meetings;
provide clarification in relation to the eligibility to hold the office of President, Vice-President, Trustee, Safety & Technical Director and Welfare Director;
remove the President’s and Vice-President’s voting power as ex-officio members of Council Committees;
subdivide sub-rule 12(3) into two sub-rules, 12(3) Council Elections – Nomination and 12(4) Council Elections – Voting; and
delete sub-rule 15(6) and have its content wholly transferred to the newly inserted Rules 16 and 17.
Secondly, the alterations to Rule 12 deal with the Federation’s election rule, changing the voting systems from first-past-the-post to an optional standard preferential system when one candidate is to be elected and to a proportional representation system when more than one candidate is to be elected.
Three new sub-rules, sub-rule 8 Voting System – Optional Standard Preferential, sub-rule 9 Voting Systems – Proportional Representation and sub-rule 10 Voting Systems – Saving Provisions, have been added to provide detailed instructions to the returning officer regarding the voting procedures during an election. Sub-rule 8 sets out the voting procedures the returning officer shall follow when one candidate only is to be elected, whereas sub-rule 9 sets out the voting procedures when more than one candidate is to be elected. Sub-rule 10 sets out the ballot paper formalities.
The changes to sub-rule 12(2)(f) set out how preferences are to be distributed if a candidate is elected to a higher office.
The above alterations are uncontroversial as they relate to the regular management of the Federation. They do not require comment beyond expressing my opinion about the matters set out in s.159(1) of the Act.
Lastly, the Federation sought to change its structure provided in Rule 4 by removing the “Cobham Council” and creating a “Network Council”.
An organisation has the right to mould its internal structures as it sees fit, provided it complies with the requirements of the legislation.[1] This includes the right to change how members are grouped and represented within the organisation. A relevant requirement of the Act is that rules must not impose conditions, obligations or restrictions that, having regard to, among other things, Parliament’s intentions and the objects of the Act, are oppressive, unreasonable or unjust. [2] When considering whether conditions imposed on members are oppressive, unreasonable or unjust, regard must be had to, among other things, the democratic functioning and control of the organisation.[3]
Cobham Council
A question arises as to whether the removal of Cobham Council imposes oppressive, unreasonable or unjust conditions on members, having regard to the objects of the Act.
In its correspondence dated 25 January 2024, the Federation advises that it does not have any current or potential members who are employed by the Cobham group of companies because Cobham has sold its operations. The Federation explained that there are no elected officials attached to the Cobham Council and all members who were previously allocated to Cobham Council have been moved to alternative councils. The Federation submits that the Cobham Council is redundant, and the alterations reflect current membership allocations.
An examination of the declaration of the Federation’s 2023 annual return confirms that the positions guaranteed to Cobham Council members have been vacant for the past year.[4]
On the basis of the material before me, I am satisfied that the removal of Cobham Council does not impose oppressive, unreasonable or unjust conditions on members, or applicants for membership, have regard to the objects of the Act.
Network Council
In its correspondence dated 25 January 2024, the Federation advises that the number of members who are employed by Network has doubled since 2021. The creation of the Network Council provides the opportunity for those members to be represented in the Council Committee. The alterations also insert a new sub-rule 4(1)(1)(l) which sets out rules for inaugural elections for the newly created Network Council. The new representatives shall take office after the Annual Convention.
In my view, the alterations do not offend against s.142(1)(c) of the Act; quite the opposite, they appear to enhance important standards of the Act, those being the democratic functioning of AFAP and the participation of its members in its affairs.
In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009 (Cth), 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
[1] Imlach v Daley (1985) 7 FCR 457 at 462
[2]Paragraph 142(1)(c) of the Act provides that rules:
must not impose on applicants for membership, or members, of the organisation, conditions, obligations or restrictions that, having regard to Parliament’s intention in enacting this Act (see section 5) and the objects of this Act and the Fair Work Act, are oppressive, unreasonable or unjust
[3] Subsection 5(3) of the Act sets out the following standards for registered organisations:
(a) ensure that employer and employee organisations registered under this Act are representative of and accountable to their members, and are able to operate effectively; and
(b) encourage members to participate in the affairs of organisations to which they belong; and
(c) encourage the efficient management of organisations and high standards of accountability of organisations to their members; and
(d) provide for the democratic functioning and control of organisations; and
(e) facilitate the registration of a diverse range of employer and employee organisations
[4] AFAP’s annual return can be viewed on the Commission’s website at Australian Federation of Air Pilots (AFAP) - Find a registered organisation - Fair Work Commission (fwc.gov.au)
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