Australian Licenced Aircraft Engineers Association

[2014] FWC 6507

[2014] FWC 6507

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009
s.158(1) RO Act - Application for alteration of eligibility rules

Australian Licenced Aircraft Engineers Association
(D2013/130)

VICE PRESIDENT HATCHER SYDNEY, 24 SEPTEMBER 2014

Application for alteration of eligibility rules.

[1] On 20 June 2014 I issued a decision 1 (Decision) concerning an application by the Australian Licenced Aircraft Engineers Association (ALAEA) under s.158 of the Fair Work (Registered Organisations) Act 2009 (RO Act) for consent to an alteration to its eligibility rule. In the Decision I indicated that I was prepared to consent to the eligibility rule alteration in part only, so that the expansion of the ALAEA’s coverage was confined to employees of Qantas Airways Limited covered by the Airline Operations - Technical Salaried Staff - Qantas Airways Limited - Award 2005 (TSS Award) and the Qantas Airways Limited (Technical Salaried Staff) Enterprise Agreement 9 (TSS Agreement), and conditional upon the ALAEA undertaking to the Commission that it will not at any time in the future enrol as a member or seek to represent the industrial interests of any person who is not eligible for membership of the ALAEA under rule 3 of its Rules.

[2] I conducted a conference involving the ALAEA and the objector unions on 14 July 2014 in order to explore whether a consent position could be reached as to the form of the rule alteration to be approved. Agreement was not reached, but the conference assisted in clarifying the remaining issues. A final hearing occurred on 29 August 2014. The ALAEA and the objector unions had earlier filed written submissions which addressed the issues of the form of the rule alteration and the undertaking to be provided to the Commission. Mr Stephen Purvinas, the ALAEA’s Federal Secretary, gave evidence at the hearing and was cross-examined by the objector unions.

[3] The ALAEA proffered the following undertaking to the Commission in order to satisfy the condition upon approval of the rule alteration identified in the Decision:

“The ALAEA undertakes that it will not at any time in the future enrol as a member or seek to represent the industrial interests of any person who is not eligible for membership of the ALAEA under rule 3 of its Rules.”

[4] I am satisfied that the form of this undertaking is consistent with the requirement for an undertaking stated in the Decision, and that the making of the undertaking was properly authorised by the ALAEA’s Federal Executive on 15 July 2014. No contrary submission was advanced by the objector unions. However, arising out of the evidence of Mr Purvinas, a question arose as to whether the Commission should accept this undertaking. Mr Purvinas gave evidence that it was the ALAEA’s intention, notwithstanding the undertaking it proffered, to continue to retain as members persons who, at the time they were enrolled as members, were not eligible to join the ALAEA. This raised a real concern in my mind as to whether the senior officials of the ALAEA had comprehended the point made in the Decision that the ALAEA’s past practice of knowingly enrolling as members persons who were not eligible to be its members under its rules constituted an abrogation of its responsibilities as a registered organisation and needed to cease.

[5] I raised this concern with the ALAEA during the course of the hearing and gave it an opportunity to consider its position by granting it a short adjournment. When the proceedings resumed, the ALAEA proposed that it offer a further undertaking in order to allay the concern that had been raised. The final formulation of that undertaking was as follows:

“The ALAEA will advise those members who did not meet the eligibility criteria upon joining and have not since become eligible, that they cannot remain members and their membership will be cancelled. Those members will then have their membership cancelled. Save for those members covered by this matter.”

[6] The proviso in the last sentence of the undertaking, which is a little clumsily expressed, is intended to exclude from the operation of the undertaking those current de facto members of the ALAEA who would become eligible to be members of the ALAEA as a result of the part-approval of the alteration to the ALAEA’s eligibility rule foreshadowed in the Decision - that is, members who are currently covered by the TSS Award and the TSS Agreement.

[7] I am prepared to accept this further undertaking in addition to the first undertaking required by the Decision. I consider that it adequately responds to the concern I identified to the ALAEA. The objector unions did not cavil with the form of this further undertaking, but submitted that I should establish a procedural regime to monitor the ALAEA’s compliance with it. I am not satisfied that power exists under the RO Act to undertake this course nor do I consider it appropriate in the circumstances. There should be no doubt, however, that any contravention of an undertaking given to the Commission would be a very serious matter. I am confident that the ALAEA understands this.

[8] As to the form of the alteration to effect the partial approval determined in the Decision, I consider that the appropriate approach is to have the new sub-rule 3.3 operate by reference to persons occupying positions which, as at the date of the Decision, were covered by the TSS Award and the TSS Agreement and remunerated under the TSS Agreement. Additionally, the sub-rule should exclude the categories of persons discussed in paragraphs [54]-[63] of the Decision as well as those persons excluded in the original form of the rule change. To be clear, these are exclusions to the new sub-rule 3.3 only and are not intended to limit the effect of sub-rules 3.1 and 3.2.

[9] I consent to the alteration to the ALAEA’s eligibility rule set out in the Annexure to this decision under s.158 of the RO Act on the basis of the findings in the Decision and the ALAEA’s undertakings set out in paragraphs [3] and [5] above. The alteration shall take effect 14 days from the date of this decision.

VICE PRESIDENT

Appearances:

G. Norris for the Australian Licenced Aircraft Engineers Association

J. Pearce of counsel with J. Moriarty and G. Thompson for the objector unions

Hearing details:

2014.

Sydney:

28 August.

ANNEXURE

Approved alteration to rule 3 of the ALAEA’s Rules

Rule 3 of the Rules of the Australian Licenced Aircraft Engineers Association is varied as follows:

1. The full stop at the end of sub-rule 3.2 is deleted.

2. The following new sub-rule 3.3 is added:

3.3 And, without limiting 3.1, persons employed by Qantas Airways Limited in positions which were, as at 20 June 2014, covered by the Airline Operations - Technical Salaried Staff - Qantas Airways Limited - Award 2005 and the Qantas Airways Limited (Technical Salaried Staff) Enterprise Agreement 9 and remunerated under the Qantas Airways Limited (Technical Salaried Staff) Enterprise Agreement 9, but shall not include:

(i) persons employed by Qantas Airways Limited in positions which were, as at 20 June 2014, covered by and remunerated under any of the following instruments:

(a) the Airline Operations AMWU Technical and Supervisory Staff (Qantas Airways Ltd) Award 1999;

(b) the Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 9;

(c) the Qantas Airways Limited (AWU, AMWU, CEPU) Brisbane Base Maintenance Agreement 4; or

(d) the Australian Services Union (Qantas Airways Limited) Agreement 10;

(ii) persons employed as, and working as, pilots; and

(iii) persons who are, or would have been eligible for membership of the Association of Professional Engineers, Scientists and Managers, Australia, as at 10 August 2012.

 1   Australian Licenced Aircraft Engineers Association [2014] FWC 3658

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