Australian Licenced Aircraft Engineers Association
[2014] FWC 3658
•20 JUNE 2014
[2014] FWC 3658
The attached document replaces the document previously issued with the above code on 20 June 2014.
In the fourth sentence of paragraph [14] “s.204(2)” has been replaced with “s.158(2)”.
Katrine Huynh
Associate to Vice President Hatcher
Dated: 22 October 2014
| [2014] FWC 3658 |
| 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, 20 JUNE 2014 |
Application for alteration of eligibility rules.
The ALAEA’s application
[1] On 3 December 2013 the Australian Licenced Aircraft Engineers Association (ALAEA) filed an application pursuant to s.158 of the Fair Work (Registered Organisations) Act 2009 (RO Act) for consent to an alteration to its eligibility rule. The alteration sought to amend sub-rule 3.2 and add a new sub-rule 3.3.
[2] Rule 3, Constitution, of the ALAEA’s Rules currently provides as follows:
“3 - CONSTITUTION
3.1 The Association shall consist of an unlimited number of persons employed or usually employed as engineers licensed to undertake, supervise and certify the maintenance of any one or more of the components, items of equipment, and/or systems (including associated equipment) in the airframes, engines, electrical systems, radio systems, and/or instrument systems on aircraft operating within the Commonwealth of Australia, its Territories and/or overseas from the Commonwealth of Australia
3.2 And any persons employed by Forstaff Pty Ltd or its subsidiaries or successors who perform, administer, or work in connection with, the refurbishment, reconfiguration or heavy maintenance work on aircraft at Avalon Airport in the State of Victoria, excluding persons employed in the occupation, industry or calling of storeworker.”
[3] The ALAEA’s rules alteration for which consent is sought would delete the full stop at the end of sub-rule 3.2 and insert the new sub-rule 3.3 as follows:
“3.2. And any persons employed by Forstaff Pty Ltd or its subsidiaries or successors who perform, administer or work in connection with the refurbishment, reconfiguration or heavy maintenance work on aircraft at Avalon Airport in the State of Victoria, excluding person employed in the occupation, industry or calling of storeworker
3.3 And, without limiting 3.1, persons employed by Qantas Airways Limited (or any successor) in the provision of technical support or in training in connection with aircraft operating within the Commonwealth of Australia its Territories and/or overseas from the Commonwealth of Australia limited to: Quality Assurance - non-destructive testing, safety, engineering; Technical support - aircraft engineering or airworthiness; Aircraft Simulator - development, operational assurance or maintenance; Maintenance Technical Support/Overhaul Technical Support - supervision, planning, warranty, or scheduling; Flight Operations - flight safety training, or data collection and/or analysis; Ground Operations Training; Engineering Training - apprentice/skills training, licence training or other aircraft engineering training, but shall not include:
(i) persons employed as, and working as, pilots; and
(ii) 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.”
[4] In its application for consent, the ALAEA stated that the reason for the proposed alteration was to ensure that the ALAEA could continue to represent the industrial interests of “Qantas technical salaried staff” which it had represented since 1986. It contended that the Fair Work Act 2009 (FW Act) had created a restriction to its capacity to represent such staff, and the proposed rule change would address and remove that restriction.
[5] Notice of the ALAEA’s application was published in the Commonwealth of Australia Gazette Notices on 5 December 2013. Four notices of objections were received from the Australian Municipal, Administrative, Clerical and Services Union (ASU), Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), The Australian Workers’ Union (AWU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).
The objections
[6] Each of the objections lodged by the objector unions contained numerous grounds of objection. The ASU’s objection, lodged on 17 December 2013, contained the following grounds (omitting the particulars provided in support of each ground):
“1. The alterations have not been made in accordance with the statutory requirements for applications seeking consent of the Fair Work Commission.
2. The alterations have not been made in accordance with the Rules of ALAEA.
3. There is another organisation to which persons who would be eligible for membership of ALAEA might more conveniently belong and would more effectively be represented by.
4. Demarcation disputes would arise from an overlap between the eligibility rules of ALAEA and the ASU and the alteration would be a source of conflict, dispute and unrest.
5. Persons who are eligible for membership of the ASU would be made eligible to be members of ALAEA because of the alteration.
6. The alteration would contravene an agreement or understanding to which ALAEA and the ASU are party to and deals with ALAEA’s right to represent under the Act industrial interests of the particular class or group of persons as per s.158(6).
7. The alteration would change the effect of an order made by the Commission.
8. The alteration is so wide in its terms as to render the meaning and extent of the alteration vague, uncertain and not readily identifiable.
9. The alteration would give rise to serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in the industry affected, or harm the business of employers affected.
10. The ASU represents persons employed in the industries, or are employed by employers, who are affected by the alteration.
11. The alteration would be contrary to the objects of the Act and contrary to the public interest.
12. Such other grounds as FWC considers appropriate.”
[7] The grounds of the CEPU’s objection lodged on 19 December 2013 were (omitting particulars):
“1. That prescribed conditions for the application seeking the consent of the Fair Work Commission have not been complied with.
2. That the alterations, the subject of the application, have not been made in accordance with the Rules of the applicant.
3. The objector is an organisation to which persons could more conveniently belong for the purposes of s.158(4)(a) of the Act.
4. The objector is an organisation that would more effectively represent persons who would be eligible for membership because of the alteration for the purposes of s.158(4)(b) of the Act.
5. No undertaking is appropriate to avoid demarcation disputes that may arise from consent to the application being granted.
6. The application is contrary to the objects of the Act.
7. Such further or other grounds as the Fair Work Commission may deem fit.”
[8] The grounds of the AWU’s objection lodged on 20 December 2013 were (omitting particulars):
“1. Those persons who would be eligible for membership because of the alteration could more conveniently belong to another organisation.
2. That the proposed alterations sought by the applicant are so wide in their terms as to render the meaning and extent vague and uncertain.
3. That the application would result in such change as to give rise to a serious risk of demarcation dispute which would prevent, obstruct or restrict the performance of work or harm the business of an employer.”
[9] The grounds of the AMWU’s objection lodged on 20 December 2013 were (omitting particulars):
“1. That prescribed conditions for the application seeking the consent of Fair Work Commission have not been complied with.
2. That the alterations, the subject of the application, have not been made in accordance with the Rules of the applicant.
3. The objector is an organisation to which persons could more conveniently belong for the purposes of s.158(4)(a) of the Act.
4. The objector is an organisation that would more effectively represent persons who would be eligible for membership because of the alteration for the purpose of s.158(4)(b) of the Act.
5. No undertaking is appropriate to avoid demarcation disputes that might arise from consent to the application being granted.
6. The application is contrary to the objects of the Act
7. Such further or other grounds as Fair Work Commission may deem fit.”
[10] When the matter came on for hearing, the four objector unions were jointly represented and, without seeking to amend their objections, effectively presented a joint case based on the following grounds of objection (as articulated in the objector unions’ outline of submissions):
(1) The Commission could not be satisfied under s.158(2) that the ALAEA had made the rules alteration in accordance with its Rules.
(2) The terms of the rules alteration, and the material lodged in support of its approval, make it impossible to obtain a clear understanding of the scope of the rules alteration, with the consequences that reg.121(2)(ii) of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations) was not complied with and that the Commission cannot be satisfied of the matters in s.158(4) and (5) of the RO Act.
(3) Alternatively, the scope of the rules alteration as drafted travels well beyond Qantas technical salaried staff, and encompasses areas of employment in Qantas traditionally represented by the objector unions. In respect of those areas of employment, persons could more conveniently belong to and be more effectively represented by the objector unions.
(4) The approval of the ALAEA’s rules alteration would give rise to a real potential for demarcation disputes. Any undertaking proffered by the ALAEA pursuant to s.158(5) should not be accepted because the ALAEA could not be trusted to comply with it.
(5) The ALAEA’s application should be refused on discretionary grounds:
(a) The ALAEA had an improper purpose in making the application.
(b) The rules change, if approved, was likely to lead to conflict and instability in the workforce.
(c) The ALAEA had a history of poor industrial behaviour, including enrolment of employees beyond its coverage, and a record of unreliability in its representations to the Commission and to other parties which disentitled it to the proposed rules change.
(d) The amended rules were contrary to the objects of the RO Act and contrary to s.142(1)(c) of the RO Act and were therefore against the public interest.
Relevant principles applicable to s.158
[11] In respect to alterations of eligibility rules, s.158 of the RO Act relevantly provides as follows:
158 Change of name or alteration of eligibility rules of organisation
(1) A change in the name of an organisation, or an alteration of the eligibility rules of an organisation, does not take effect unless:
(a) in the case of a change in the name of the organisation—the FWC consents to the change under this section; or
…
(2) The FWC may consent to a change or alteration in whole or part, but must not consent unless the FWC is satisfied that the change or alteration has been made under the rules of the organisation.
…
(4) The FWC must not consent to an alteration of the eligibility rules of an organisation if, in relation to persons who would be eligible for membership because of the alteration, there is, in the opinion of the FWC, another organisation:
(a) to which those persons could more conveniently belong; and
(b) that would more effectively represent those members.
(5) However, subsection (4) does not apply if the FWC accepts an undertaking from the organisation seeking the alteration that the FWC considers appropriate to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation.
(6) The FWC may refuse to consent to an alteration of the eligibility rules of an organisation if satisfied that the alteration would contravene an agreement or understanding to which the organisation is a party and that deals with the organisation’s right to represent under this Act and the Fair Work Act the industrial interests of a particular class or group of persons.
(7) The FWC may also refuse to consent to an alteration of the eligibility rules of an organisation if it:
(a) is satisfied that the alteration would change the effect of any order made by the FWC under section 133 about the right of the organisation to represent under this Act and the Fair Work Actthe industrial interests of a particular class or group of employees; and
(b) considers that such a change would give rise to a serious risk of a demarcation dispute which would prevent, obstruct or restrict the performance of work in an industry, or harm the business of an employer.
[12] Section 158, in respect of alterations to eligibility rules, is the same in substance as s.204 of the former Workplace Relations Act 1996 (WR Act). In Re CPSU, Community and Public Sector Union 1 a Full Bench of the Australian Industrial Relations Commission (AIRC) considered the nature of the discretionary power exercised in relation to eligibility rules alterations under s.204 of the WR Act. The Full Bench said:
“[71] The discretion under section 204 is exercisable by reference to several ‘statutory’ considerations, some of which if satisfied condition the exercise of the discretion. Some other considerations are also prescribed by the section and may be given determinative weight at the discretion of the decision maker. The discretion may also be exercised by reference to considerations that are not directly specified by the section...
[72] ... However subsections 204(2), (3), and (4) require consent to be refused if the designated Presidential Member is satisfied or of the opinion as to the criteria specified. In relation to those criteria at least, and subject to the qualification in subsection 204(5), the discretion under section 204 may be said to be structured, although, as his Honour observed: ‘On the other hand, the failure to satisfy those requirements (the subsection 204(4) criteria) does not oblige a designated Presidential member to give consent to such an alteration.’ The criteria in subsections 204(6A) and 204(6B) are expressed in less mandatory terms. Subsection 204(6C) explicitly opens the exercise of the discretion to consideration of grounds that are not limited to those grounds. Moreover, as Williams SDP held ‘in determining an application for consent … the public interest as provided for in s.90 is a relevant and significant consideration’. Although Mr Bromberg in his submissions suggested there was doubt about whether the public interest could relevantly be considered, we consider that the weight of Commission precedents, established practice, and the combined effect of subsection 204(6C) and Regulation 51 leave little room for any such doubt.”
[13] Subsections 204(2), (3), (4) and (5) of the WR Act referred to in the above passage correspond with the same numbered subsections in the current s.158. Subsections 204(6A), (6B) and (6C) correspond with the current subsections 158(6), (7) and (8). The Regulation 51 referred to (that is, reg.51 of the Workplace Relations Regulations) corresponds with regs.124 and 14 of the RO Regulations.
[14] I consider that the Full Bench’s analysis in Re CPSU is, subject to one proviso, fully applicable to s.158 of the RO Act. Section 158(2) provides that the Commission “may” consent (relevantly) to a change or alteration to the eligibility rules of an organisation. Where a statutory conferral of power uses the word “may”, the exercise of the power is discretionary, unless the statute demonstrates a contrary intention. 2 The discretion conferred by s.158(2) is conditioned in a number of respects. Subsection (2) requires that consent not be granted unless the Commission is satisfied that the rules alteration has been made under the rules of the organisation. Subsection (4) also requires that consent not be granted if, in the Commission’s opinion, the persons who would become eligible for membership because of the alteration could more conveniently belong to and be more effectively represented by another organisation. However, subsections (2) and (4) do not limit the grounds upon which consent may be refused, as subsections (6), (7) and (8) make clear. Subsections (6) and (7) identify specific grounds upon which the Commission, in the exercise of its discretion, may refuse consent, and subsection (8) makes it clear that the Commission has a general discretion as to the grounds upon which it may refuse to grant its consent.
[15] The proviso is that there is no equivalent in the RO Act to s.90 of the WR Act, which required the AIRC to take the public interest into account in the performance of its functions. The Commission’s discretion under s.158 must, however, be exercised in accordance with usual principles - that is, it must be exercised in a bona fide fashion having regard to the policy and purpose of the statute. 3 In this respect, s.5 of the RO Act is of significance, in that it sets out the legislature’s intention in enacting the RO Act. Section 5 provides (excluding the note):
Parliament's intention in enacting this Act
(1) It is Parliament's intention in enacting this Act to enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation.
(2) Parliament considers that those relations will be enhanced and those adverse effects will be reduced, if associations of employers and employees are required to meet the standards set out in this Act in order to gain the rights and privileges accorded to associations under this Act and the Fair Work Act.
(3) The standards set out in this Act:
(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) It is also Parliament's intention in enacting this Act to assist employers and employees to promote and protect their economic and social interests through the formation of employer and employee organisations, by providing for the registration of those associations and according rights and privileges to them once registered.
(5) Parliament recognises and respects the role of employer and employee organisations in facilitating the operation of the workplace relations system.
[16] Leaving aside the mandatory provisions in subsections (2) and (4), the Commission would endeavour to exercise its discretionary power to grant or refuse consent to alterations to eligibility rules in a way which gives effect to the legislature’s intention as expressed in s.5 and as otherwise expressed in the text of the RO Act.
[17] Section 158(2) provides that the Commission may consent to a change or alteration “in whole or part”. Section 204(2) of the WR Act made provision to the same effect, as did the Industrial Relations Act 1988 and the Conciliation and Arbitration Act 1904. In National Tertiary Education Industry Union v Community and Public Sector Union 4 the AIRC (Williams SDP) determined that power to consent to an alteration in part was not confined to the “blue pencil test” - that is, “the physical deletion or striking out of parts of the proposed alteration”.5 In this respect, the AIRC followed the Full Bench decision of the Conciliation and Arbitration Commission in Re Federated Miscellaneous Workers’ Union of Australia6concerning s.139(2) of the Conciliation and Arbitration Act 1904, which provided in respect to alterations of eligibility rules that “The Registrar may consent to the change or alteration in whole or in part”. The Full Bench said7:
“The ‘blue pencil’ rule as it was described by Mr Northrop postulates that section 139(2) divorces from the function of the Registrar any power to alter the rules in form or in substance other than by the mere deletion of words. Taken to its logical conclusion this would mean that if an organization applied for eligibility in respect of, for example, candle-stick makers in New South Wales, Victoria, Queensland, South Australia, Western Australia, Tasmania, Australian Capital Territory and the Northern Territory the Registrar could delete the State of Victoria or such further States or Territories from the rule as he saw fit; but if the rules sought coverage for ‘candle-stick makers in Australia’ the Registrar would not be permitted to qualify the rule by a proviso or exception as to a State or Territory.
...
We consider that section 139(2) can be construed so as to allow a Registrar to amend rules in respect of which consent is sought for the purpose of consenting in part to the extension sought. The sub-section connotes a consent to the substance of the rules rather than to the form in which those rules have been drafted. Amendment by way of modification of, or qualification to, the form of the rules as drafted must be required from time to time in order to give effect to a partial consent to the substance.
However, two important factors must be borne in mind. Firstly the power to amend must be strictly confined. It can only be used, apart from `blue pencil' deletions, so as to authorise amendment which, as a matter of construction, exclude persons who would otherwise have been eligible under the rules as proposed.
Secondly, no amendment should be made by the Registrar which would be calculated to prejudice the position of an objecting organization or a potential objector to such an amendment. This is a matter to be considered in each particular case. It means no more than procedural justice should be observed in the exercise of the functions under section 139(2).”
[18] Where it has been determined that partial consent should be given to an alteration to an eligibility rule by way of the addition of a textual limitation, it was held in NTEU v CPSU 8and in Re Shop, Distributive and Allied Employees’ Association9 (Boulton J) that it was not necessary that the partial alteration again be approved in accordance with the organisation’s rules.
[19] Section 158(4), as earlier stated, provides that the Commission must refuse consent if it forms the opinion of the nature identified in the subsection. The proper construction of s.204(4) of the WR Act, which was in relatively identical terms to s.158(4), was the subject of extensive consideration in NTEU v CPSU and on appeal from that decision in Re CPSU. The principles which emerge from those decisions may be summarised as follows:
● The provision prescribes one condition or criterion with two limbs linked by the conjunction “and”. If established, that condition requires consent to be withheld. 10
The two limbs of the condition are to be assessed by reference to the same class of persons, namely “persons who would become eligible to join the applicant association because of the proposed alteration” (notwithstanding the reference to “persons” in paragraph (a) and “members” in paragraph (b)). 11
The use of the word “more” in paragraphs (a) and (b) requires a comparison to be made between relevant organisations. That “persons who would become eligible to join the applicant association because of the proposed alteration” could conveniently belong to and be effectively represented by another organisation is not sufficient to satisfy the condition in the subsection. 12
The test in the subsection is to be applied at the time the decision to grant or refuse consent is made. 13
The “more conveniently belong” and “more effectively represent” limbs of the s.204(4) condition should not be conflated, but the considerations relevant to each limb are not mutually exclusive. The former is oriented more towards the perceived convenience of the employees who would become eligible because of the proposed alteration. The latter is about the relative capability of the applicant and other organisations to effectively represent the industrial interests of that class of employees. 14
The acceptance of an undertaking considered appropriate to avoid demarcation disputes under subsection (5) allows consent to be granted even if the condition in subsection (4) is satisfied. 15
[20] Two additional principles concerning the operation of s.204(4) of the WR Actare significant. Firstly, in the Federal Court Full Court decision in Re Australian Workers’ Union; Ex parte Construction, Forestry, Mining and Energy Union 16it was emphasised that it is necessary to identify the class of “persons who would become eligible to join the applicant association because of the proposed alteration” in order that the assessment as to whether the condition in subsection (4) is satisfied proceeds on the correct basis.17 This will usually involve construing both the pre-existing eligibility rules and the alteration on the assumption that it formed part of the eligibility rules.
[21] Secondly, in Re AWU; Ex parte CFMEU, Merkel J identified the consequence of a conclusion that the condition in subsection (4) was satisfied in respect of some but not all of the persons who would become eligible to join the applicant organisation because of the proposed alteration as follows:
“[143] ... the consent must be withheld if the Member forms the opinion that because of the alteration there are persons who would be eligible for membership who "might more conveniently belong" to another organisation that "would more effectively represent those persons". The requisite opinion need not be formed in respect of all persons who would be eligible because of the alteration. Putting to one side de minimis issues, if the opinion is formed that there are persons who fall within the categories described in s 204(4)(a) and (b) then the consent to the alteration must be withheld, notwithstanding that there may also be persons who would be eligible because of the alteration but who do not fall within the categories described in s 204(4)(a) and (b). In such a case, although the consent is required to be withheld in respect of the proposed alteration, the Member may, nonetheless, be required to consider the discrete issue arising under s 204(2) of whether the consent should be given to the alteration in part that is, to the rule alteration in so far as it applies to persons who do not fall within the categories described in s 204(4)(a) and (b). Of course, the resolution of that issue will require the formulation of the re-altered rule and the determination of whether consent to the re-altered rule is to be given or refused under s 204.”
[22] That approach was followed by a Full Bench of the AIRC in Re Australian and International Pilots Association. 18
[23] I regard the principles identified above in relation to s.204(2) and (4) of the WR Act (and its predecessors) as fully applicable to s.158(2) and (4) of the RO Act.
Compliance with the requirements of regulation 121(2)
[24] Regulation 121(2) establishes requirements as to the form and content of applications for consent under s.158. As earlier stated, the objector unions submitted that the ALAEA’s application did not comply with reg.121(2)(b)(ii), which provides:
(2) An application under subregulation (1) must:
...
(b) set out:
...
(ii) if the application is for consent to alter the eligibility rules of the organisation - the proposed alteration, the reason for the proposal and the effect of the proposal, in sufficient particularity to allow the proposal to be properly considered ...
[25] I reject the objector unions’ submissions. I consider that that ALAEA’s application sets out the proposed alteration, the reason for it and its effect in a way which allows it to properly be understood and considered. Whether it correctly states the purpose and effect of the proposed alteration is, of course, another question. I am satisfied that the ALAEA’s application complies with reg.121(2).
Section 158(2) - whether the alteration has been made under the rules of the organisation
[26] Sub-rule 12(2) of the ALAEA’s Rules provides that the Federal Executive has the power “To repeal, alter or add to the provisions of these Rules”. Rule 13 sets out the requirements applicable to the holding of meetings and the passage of resolutions by the Federal Executive. Sub-rule 13(5) provides a mechanism by which resolutions may be carried without the need for a physical meeting of the Federal Executive as follows:
“(5) The Federal Secretary may submit any motion, question or matter by letter, facsimile, e-mail or verbally to each member of the Federal Executive. Upon a majority of them indicating their approval by letter, facsimile, e-mail or verbally the decision obtained upon such motion or question shall have the same effect as a decision made by a resolution of Federal Executive at a duly constituted meeting.
Provided that if within a period of twenty-one days from the despatch of the letters, e-mails or facsimiles the motion or question has not been determined according to the foregoing provisions, the motion, question or matter shall be determined in accordance with the majority of votes received and the decision so obtained upon such motion, question or matter shall have the same effect as a decision made by resolution of Federal Executive passed at a duly constituted meeting, provided that votes have been received from not less than ten members.”
[27] There is no special requirement applicable to a resolution to alter the ALAEA’s Rules. The ALAEA contended that the alteration to its eligibility rule was made in accordance with sub-rule 13(5).
[28] The ALAEA’s application was accompanied by a declaration made by Wayne Vasta, the Assistant Federal Secretary of the ALAEA, concerning the way in which the eligibility rules alteration had been made under the ALAEA’s Rules. Mr Vasta was cross-examined on his declaration. Evidence about the making of the alteration was also given by Gary Norris, the ALAEA’s Senior Industrial Officer. He was also subject to cross-examination. Mr Norris’s witness statement dated 25 March 2014 19 annexed a statutory declaration made by Wendy Graham, an Administration Assistant employed by the ALAEA, on 25 March 2014. That declaration was admitted into evidence as part of Mr Norris’s witness statement without objection, and Ms Graham was not required for cross-examination. A number of relevant documents were also admitted into evidence. The evidence established the following:
(1) On or about 25 November 2013 Mr Norris drafted a “Notice of Resolution” (Notice). The Notice made reference to the ALAEA Rules and set out sub-rule 13(5) in whole, and then stated:
“Notice of motion is hereby given by the Federal Secretary for members of the Federal Executive to vote on the following resolution, it is moved:
“The Federal Executive resolves to alter the rules of the Association under Rule 12(2). The Federal Secretary is to take the appropriate action to withdraw the application in FWA matter D2010/5006, and file a new application to amend the ALAEA Constitution and Rules to amend rule 3.2 by deleting the full stop after the word “storeworker” and then following adding a new rule 3.3 as follows: ...
3.3 And, without limiting 3.1, persons employed by Qantas Airways Limited (or any successor) in the provision of technical support or in training in connection with aircraft operating within the Commonwealth of Australia its Territories and/or overseas from the Commonwealth of Australia limited to: Quality Assurance - non-destructive testing, safety, engineering; Technical support - aircraft engineering or airworthiness; Aircraft Simulator - development, operational assurance or maintenance; Maintenance Technical Support/Overhaul Technical Support - supervision, planning, warranty, or scheduling; Flight Operations - flight safety training, or data collection and/or analysis; Ground Operations Training; Engineering Training - apprentice/skills training, licence training or other aircraft engineering training, but shall not include:
(i) person employed as, and working as, pilots; and
(ii) 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.”
The Notice stated that the resolution was moved by Stephen Purvinas and seconded by Stephen Re. There is no issue that Mr Purvinas was at all relevant times the Federal Secretary of the ALAEA, and Mr Re was a member of the ALAEA’s Federal Executive. The Notice contained a space for the signature of “Stephen Purvinas, Federal Secretary”, but it was not signed or dated by him. It then contained two boxes, labelled “In favour” and “Against” respectively, by which a vote on the resolution could be indicated. It then had spaces for the person voting to put his or her signature and printed name, and a further space labelled “Verified by”.
(2) At 2.36 pm on 25 November 2013, Mr Norris emailed the resolution to Ms Graham with the following message:
“Attached is an electronic resolution to effect the rule change to cover the QF TSS members and an explanation for the Exec. Can we get this out and voted on ASAP as I need to get the application in to FWC.”
(3) At 3.10 pm on that day Mr Purvinas rang Ms Graham and instructed her to circulate the “electronic resolution” to the Federal Executive to vote upon.
(4) At 3.27 pm Ms Graham sent a bulk email to the members of the ALAEA’s Federal Executive which attached the “electronic resolution”. The email itself contained a long message. The message began by saying “Please find attached a notice of electronic resolution - We are after swift response to this to enable us to progress this ASAP (note: advice re: SMS response at bottom of this email).” After that was set out the resolution, and then appeared the following “explanation for the resolution”:
“Explanation Rules Case Application amendment
The ALAEA Rules change case original application made in 2010 included changes to our rules to include AMEs (GA), and Technical Salaried Staff employees, who were currently our members. i.e. to protect our current membership.
In addition the application also included changes to enable membership of all AMEs in future including A licence holders to expand our membership.
The case has been ongoing at a snail’s pace mainly due to the number of objectors and them running all sorts of ruses to delay the matter, with the main concern being the expanded part of our rules.
More recently the issue of protecting our TSS membership particularly at Qantas has become an urgent priority as Qantas have refused the ALAEA representing its members in negotiating their new Enterprise Agreement, based on the application of the Fairwork Act 2009 as amended 2013. These 170 members want to stay with the ALAEA but have indicated if the ALAEA can’t be at the bargaining table to represent them then they will seek out another union en masse to do so. The meetings with QF for the EA negotiations commenced on 24th October 2013, so it is imperative we get our rules changed for the QF TSS urgently.
To get it through FWC and to nullify current objectors we recommend that we withdraw our current application, and file a new application to only amend the Rules at this stage to cover the TSS and then pursue the rest of the rule changes separately, but as a the next top priority. Hopefully in getting the TSS dealt with urgently and reducing the complexities in the current application (to be withdrawn), we can then focus all efforts on the AME rule which may expedite the whole campaign.
The proposed action is to only pursue the Qantas TSS rule now. The rest of the current application re AME rule, will be pursued under a separate and new application as soon as the TSS rule goes through. A separate resolution will be circulated for the new AME coverage Rule after the TSS Rule is finalised.
Therefore we recommend the attached resolution be adopted.”
The email ended by saying: “Note: I will also send out an SMS with a request to approve this resolution - you can reply to that SMS”.
(5) As votes were returned by SMS message, Ms Graham recorded the votes on a document entitled “Federal Executive Resolution List”. This stated that the “Resolution Title” was “The Federal Executive resolves to alter the rules of the Association under Rule 12(2)” and was dated 25 November 2013. The document listed the names of the 19 members of the Federal Executive in a table, with columns to record “Sent”, “Returned”, “Method Returned”, “Yes”, “No” and “Abstained”. The document appears to have pre-marked all the members of the Federal Executive as having been “Sent” the document. Under “Returned”, twelve members were marked by hand as having returned their votes, with Mr Purvinas and Mr Re pre-marked. The “Method Returned Column” had “Proposer” typed in against Mr Purvinas’s name, and “Seconder” typed in against Mr Re’s name. Twelve members were marked by hand as having voted in favour in the “Yes” column (the same twelve hand-marked as having returned votes), and Mr Purvinas and Mr Re were pre-marked as voting in favour in that column. There was nothing in the “No” column, and five members were hand-marked as abstaining in the “Abstain” column. These five were the same five who were not marked as having returned a vote in the “Returned” column, and it was explained by Mr Norris that these five had not in fact abstained but rather had not returned a vote. At the foot of the document, an outcome of 14 votes returned, 14 in favour, nil against and five abstaining is recorded. It appears all the votes were returned by SMS message.
(6) The vote was effectively closed once a clear majority was obtained. At 9.11 am on 26 November 2013 Ms Graham sent an email to the Federal Executive members informing them that the resolution had passed.
[29] The objector unions submitted that the proposed alteration was not made under the Rules of the ALAEA in two respects. Firstly, they submitted that the resolution was moved and seconded in a manner which was inconsistent with the requirements of sub-rule 13.5. I do not accept that submission. It may be that a mover and seconder for the resolution was not required, given that sub-rules 16(a) and (d), which require a mover and seconder for all resolutions, only apply to physical meetings conducted under the rules. But the essential requirements of clause 13.5, namely the submission of a resolution by the Federal Secretary to the members of the Federal Executive, and the indication of approval of such resolution by a majority of Federal Executive members within a 21-day period, were satisfied here. I do not consider that the reference to Mr Purvinas and Mr Re being the “Proposer” and “Seconder” respectively had any effect on the validity of the resolution. Even if Mr Purvinas and Mr Re were removed from the count of votes in favour, there was still a clear majority which voted to approve the resolution.
[30] Secondly, the objector unions submitted that the resolution, on its face, resolved to alter the Rules of the ALAEA, but did not say what the change would be to the text of the Rules, and that it was to be read as authorising an application to seek approval of part of the text of the rule change for which approval had earlier been sought in FWA matter D2010/5006.
[31] I cannot accept this submission either. The meaning of the resolution is clear on its face: the earlier application was to be withdrawn, and a new rule change, the text of which was set out in the resolution, was to be made. That this was the intended meaning was made clear by the explanation which accompanied the resolution, which stated that, for strategic reasons, the earlier and wider rules alteration was to be abandoned and that, for the time being, a narrower rules alteration would be made which sought to cover “Qantas technical salaried staff” only.
[32] I find that the alteration to the ALAEA’s eligibility rule was made under the Rules of the ALAEA.
Section 158(4) - more conveniently belong and more effectively represent
Scope of sub-rule 3.3
[33] For the reasons earlier explained, it is necessary to first identify the class of persons who would become eligible to join the ALAEA if consent was given to its proposed alteration before considering the application of the s.158(4) criterion.
[34] Rule 3 of the ALAEA’s Rules as currently in effect provides for two classes of persons to be eligible to join the ALAEA. The first class, specified in sub-rule 3.1, consists of engineers licensed to undertake, supervise and certify the maintenance of aircraft. The second class, specified in sub-rule 3.2, consists of employees of Forstaff Pty Ltd conducting refurbishment, reconfiguration or heavy maintenance work on aircraft at Avalon Airport, excluding storeworkers. The second class has effectively become redundant since the closure by Qantas Airways Limited (Qantas) of its heavy maintenance facility at Avalon Airport earlier this year.
[35] In a written submission lodged on 14 March 2014, the ALAEA contended that the effect of the new sub-rule 3.3 would be to make eligible to join it all employees in the following six classes of work:
● Quality Assurance - non-destructive testing, safety, engineering;
● Technical Support - aircraft engineering or airworthiness;
● Aircraft Simulator - development, operational assurance or maintenance;
● Maintenance Technical Support/Overhaul Technical Support - supervision, planning, warranty, or scheduling;
● Flight Operations - flight safety training, or data collection and/or analysis; and
● Ground Operations Training; Engineering Training - apprentice/skills training, licence training or other aircraft engineering training.
[36] The ALAEA further submitted that the above classes of work related directly to the classifications in 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). The TSS Award and the TSS Agreement, it was submitted, represented the scope of the ALAEA’s existing de facto coverage and representation of Qantas technical salaried staff. The coverage of those instruments, it was submitted, represented the scope of the new sub-rule 3.3.
[37] The first part of that submission may be accepted, in that under the proposed new sub-rule 3.3 the eligibility for membership of “persons employed by Qantas Airways Limited (or any successor) in the provision of technical support or in training in connection with aircraft operating within the Commonwealth of Australia its Territories and/or overseas from the Commonwealth of Australia” is then stated to be “limited” to the six classes of work identified above (all of which can readily be characterised as involving the provision of technical support or training). However, a difficulty arises with respect to the second part of the submission, in that there is nothing in the new sub-rule 3.3 which confines its scope to Qantas employees covered by the TSS Award or the TSS Agreement. Nor, it may be added, does sub-rule 3.3 even confine its operation to “salaried staff”, so that it would potentially cover employees on weekly wages. I accept, having analysed the classifications and coverage of the TSS Award and the TSS Agreement, that all persons covered by those instruments would be “persons who would be eligible for membership because of the alteration” for the purpose of s.158(4). However, the question then arises whether there are persons employed by Qantas who are not covered by the TSS Award or the TSS Agreement who would be covered by the new sub-rule 3.3.
[38] The witnesses called by the objector unions gave evidence that Qantas employs a large number of persons who would be covered by the ALAEA’s new sub-rule 3.3 who do not work under the TSS Award or the TSS Agreement. Anne Donnellan, the Assistant National Secretary of the Technical Supervisory and Administrative Division of the AMWU identified in her witness statement dated 7 March 2014 a number of work descriptors in the new sub-rule 3.3 which described work performed by employees covered by classifications in the Airline Operations AMWU Technical and Supervisory Staff (Qantas Airways Ltd) Award 1999 (AMWU T&S Award), which award has been excluded in effect by the Qantas Airways Limited (AWU, AMWU, CEPU) Enterprise Agreement 9 (Maintenance Agreement) and the Qantas Airways Limited (AWU, AMWU, CEPU) Brisbane Base Maintenance Agreement 4 (Brisbane Maintenance Agreement). Ms Donnellan was not cross-examined on her statement, and the ALAEA did not call any evidence to contradict it. Nor was any submission made by the ALAEA which sought to respond in any detail to her analysis.
[39] My own analysis of Ms Donellan’s evidence by reference to the classification titles and descriptors in the AMWU T&S Award, the Maintenance Agreement and the Brisbane Maintenance Agreement leads to the following conclusions:
(1) The classifications in the AMWU T&S Award, the Maintenance Agreement and the Brisbane Maintenance Agreement of Trainee Production Planner, Production Planner Levels 1-3, Production Planner Level 4 - Technical, Production Planner Level 4 - Supervisory, and Production Planner Levels 5-6 would fall within the “Maintenance Technical Support/Overhaul Technical Support - supervision, planning, warranty, or scheduling” class of work in the ALAEA’s new sub-rule 3.3.
(2) The classifications in the AMWU T&S Award, the Maintenance Agreement and the Brisbane Maintenance Agreement of Simulator Trainee, Simulator Maintenance Technical Assistant, and Simulator Maintenance Technical Officer Levels 1-6 would fall within the “Aircraft Simulator - development, operational assurance or maintenance” class of work in the ALAEA’s new sub-rule 3.3.
(3) The classifications in the AMWU T&S Award and the Maintenance Agreement of Inspector - Non-Destructive Testing (NDT) Melbourne (including Trainee at Level 3.1, NDT Technician at Levels 4.1, 5.1 and 6.1) and Quality Assurance Surveyor classifications in Melbourne would fall within the “Quality Assurance - non-destructive testing, safety, engineering” class of work in the ALAEA’s new sub-rule 3.3.
(4) The classifications in the AMWU T&S Award and the Maintenance Agreement of Technical Officer in Melbourne would fall within the “Technical Support - aircraft engineering or airworthiness” in the ALAEA’s new sub-rule 3.3.
[40] I consider that all of the above classifications would involve the provision of technical support or training in connection with the operation of domestic or international aircraft. And, although it is not necessary to bring them within the scope of the new sub-rule 3.3, I note in any event that all of the above classifications where they appear in the AMWU T&S Award, the Maintenance Agreement and/or the Brisbane Maintenance Agreement are remunerated by way of annual salaries, and could therefore be described as technical salaried staff. 20 I conclude that all persons in the above classifications employed by Qantas would be “persons who would be eligible for membership because of the alteration” for the purpose of s.158(4).
[41] In addition, Linda White, the Assistant National Secretary of the ASU, said in her witness statement that the ALAEA’s proposed alteration would or might extend its coverage to employees covered by the Australian Services Union (Qantas Airways Limited) Agreement 10 (ASU Agreement). Ms White was not required for cross-examination by the ALAEA, and her evidence in the identified respect was not rebutted by any evidence adduced by the ALAEA. The ALAEA’s submissions did not specifically deal with Ms White’s evidence, despite that evidence being relied upon in the objector unions’ submissions. The ASU Agreement contains a number of classification levels which are initially defined in generic terms, and then identify typical duties performed in various work areas. One of the work areas is “Engineering Technical Operations & Maintenance Services”. For example, in Levels 7 and 9, the typical duties in this area are described as follows:
“Typical duties within Engineering Technical Operations & Maintenance Services at Level 7 include:
• Coordinate daily functions of teams to assist in achieving departmental KPIs/KRAs; and,
• Plan, monitor and amend the scheduling of training resources to achieve optimum efficiency and effectiveness in satisfying the requirements of the Flight Operations' Endorsement and Recurrent Training programs, the Company's scheduled flying program and budget forecasts; and,
• Determine and monitor the usage requirements of all training resources and identify opportunities to generate income via the provision of simulator training time or other training services to external customers, other airlines and organisations; and,
• Recommend improvements to training and scheduling systems, procedures and documentation to enhance efficiency and effectiveness levels; and,
• Provide support within Operations Control Centre to manage all disruptions and perform a coordinating role in maintaining schedule integrity for QF and Customer Airlines; and,
• Process all incoming movement messages and other message queues to ensure data is correct and databases are updated accurately; and,
• Monitor and filter weather, Notam and engineering messages to determine the impact on schedule to enable early warnings of any delays.
...
Typical duties within Engineering Technical Operations & Maintenance Services at Level 9 include:
• Analyse and introduce technical system enhancements to significantly improve the timeframe in which Airworthiness Compliance Database is updated after maintenance is carried out; and,
• Responsible for the technical records of all Qantas and client Aircraft under their control are maintained to the satisfaction of lessor/owner through effective monitoring, directing and reviewing the auditing of documents produced by workshops and planning staff; and,
• Act as key reference point of contact for other Qantas departments, client airlines and CASA regarding technical record and compliance issues; and,
• Identify and investigate non-conformance and potential exposure to non- conformance in conjunction with line management; and/or,
• Participate in the management of quality and compliance issues in Material and Logistic sites domestically and internationally.”
[42] I have examined all the classifications in the ASU Agreement. I consider that employees under that agreement who work in “Engineering Technical Operations & Maintenance Services” are employed by Qantas in the provision of technical support and training in connection with domestic and international aircraft operations in the area of “Technical support - aircraft engineering or airworthiness” and/or “Flight Operations - flight safety training, or data collection and/or analysis”. Such employees would be “persons who would be eligible for membership because of the alteration” for the purpose of s.158(4).
[43] In summary, the new sub-rule 3.3 would extend the ALAEA’s coverage to include all persons employed by Qantas in the provision of technical support and training in connection with domestic and international aircraft operations, but limited to:
● Quality Assurance - non-destructive testing, safety, engineering;
● Technical Support - aircraft engineering or airworthiness;
● Aircraft Simulator - development, operational assurance or maintenance;
● Maintenance Technical Support/Overhaul Technical Support - supervision, planning, warranty, or scheduling;
● Flight Operations - flight safety training, or data collection and/or analysis; and
● Ground Operations Training; Engineering Training - apprentice/skills training, licence training or other aircraft engineering training.
[44] The above includes all persons covered by the TSS Award and the TSS Agreement; Production Planners, Simulator Trainees, Simulator Maintenance Technical Assistants and Simulator Maintenance Technical Officers under the AMWU T&S Award, the Maintenance Agreement and the Brisbane Maintenance Agreement; Inspectors - NDT, Quality Assurance Surveyors and Technical Officers in Melbourne under the AMWU T&S Award and the Maintenance Agreement; and persons covered by the ASU Agreement who work in Engineering Technical Operations & Maintenance Services. However it would not include licensed aircraft engineers who are already eligible to join the ALAEA under sub-rule 3.1, pilots, and persons who are or would have been eligible to join the Association of Professional Engineers, Scientists and Managers, Australia as at 10 August 2012.
[45] Whether the criterion in s.158(4) is satisfied therefore needs to be assessed by reference to the class of employees so identified.
Employees under the TSS Award and the TSS Agreement (TSS Staff)
[46] I will first consider the position of employees covered by the TSS Award and the TSS Agreement and their predecessor instruments (TSS Staff). As to the “more conveniently belong” limb of s.158(4), the evidence has established that the ALAEA has represented TSS Staff since approximately 1986, and has the confidence and support of a substantial majority of them. I find that:
● The ALAEA has recruited substantial numbers of TSS Staff as members, albeit this was not authorised by its eligibility rules (a subject to which I will return later in this decision). The ALAEA currently has about 155 TSS Staff as members. A majority of these have been members of the ALAEA for ten years or more.
● The TSS Award and the TSS Agreement bind the ALAEA.
● The Rules of the ALAEA provide for one of its Federal Executive Councillors to be elected by TSS Staff members. In addition, it currently has nine TSS Staff members who are its workplace representatives.
● Qantas has until recently recognised the ALAEA as a legitimate representative of TSS Staff. In negotiations for a new enterprise agreement that commenced in 2013, Qantas contended (and the ALAEA did not take action to contest) that the ALAEA was not entitled to be a bargaining representative under s.176 of the FW Act because it was not entitled under its Rules to represent the industrial interests of TSS Staff.
● Although, if consent is not granted to the new sub-rule 3.3, the ALAEA’s TSS Staff members would look to another union for representation, they would generally prefer to continue to be represented by the ALAEA.
[47] There was one matter which caused me some concern as whether TSS Staff could conveniently belong to the ALAEA. At the time the ALAEA’s application in this matter was filed, and at the time of the hearing, sub-rule 22(e) of its Rules provided as follows:
“(e) An Officer of the Federal Executive as defined by Rule 11 sub-Rule 4(d) must hold qualifications as a Licenced Aircraft Maintenance Engineer to be eligible for the nomination to that Office.”
[48] Under sub-rule 11(4)(d), “Officer” means “Federal President, Senior Vice-President, Vice-President, Federal Secretary, Assistant Federal Secretary or Trustee”. The effect of sub-rule 22(e), if the new sub-rule 3.3 was given consent, would therefore be to exclude any TSS Staff member who thereby became eligible to join the ALAEA from election to any of the identified officer positions. This exclusion from the democratic control of the ALAEA arguably affected whether TSS Staff could conveniently belong to and be effectively represented by the ALAEA.
[49] However on 8 May 2014 the ALAEA made an application under s.159 of the RO Act for consent to a rules alteration made by its Federal Executive. The alteration was to delete the existing sub-rule 22(e) and to renumber the following sub-rules in rule 22. Although it awaits approval by the General Manager under s.159, there is no reason to think that such approval will not be forthcoming. I consider that this rules alteration disposes of the issue (and it also disposes of the objector unions’ s.142(1)(c) point).
[50] I find that TSS Staff employees could conveniently belong to the ALAEA.
[51] The evidence demonstrates that the objector unions are all large and well-resourced organisations with long histories of representation of Qantas employees in various areas of its operations. The eligibility rules of the objector unions were not extensively explored in submissions, but it is likely that TSS Staff would be eligible to belong to at least the ASU and the AMWU. However, the number of TSS Staff who have actually become members of any of the objector unions is very small and, as earlier stated, the majority of TSS Staff would prefer to be members of the ALAEA. I find that TSS Staff could conveniently belong to at least the ASU and the AMWU. However the evidence does not sustain the proposition that TSS Staff could more conveniently belong to any of the objector unions than the ALAEA.
[52] In relation to the “more effectively represent” limb, there was no issue, and the evidence made clear, that the ALAEA has competently represented TSS Staff since about 1986. It has taken the lead role in negotiating a series of certified/workplace/enterprise agreements for the benefit of TSS Staff. The ASU and the Transport Workers’ Union have been involved in such negotiations from time to time, but have only taken a minor if not negligible role. The other objector unions have not been involved in such negotiations at all. The ALAEA has also taken the lead role in representing TSS Staff in disputes and award matters. It also employs staff who have effectively represented the interests of TSS Staff for many years. Although it is likely that the objector unions could also effectively represent TSS Staff, I do not consider that they could more effectively represent such employees than the ALAEA.
[53] Accordingly the s.158(4) condition is not satisfied with respect to TSS Staff.
Employees under the AMWU T&S Award, the Maintenance Agreement and the Brisbane Maintenance Agreement (Maintenance Staff)
[54] The position is different with respect to those employees earlier identified under the AMWU T&S Award, the Maintenance Agreement and/or the Brisbane Maintenance Agreement who would become eligible to join the ALAEA under the new sub-rule 3.3 (Maintenance Staff). In respect of Maintenance Staff, the evidence demonstrated that the AMWU:
● may enrol such employees as members under its rules;
● has substantial actual membership;
● has a strong national presence in the airline history as a whole, which contributes to its strength and influence;
● has a specialist division, the Technical Supervisory and Administrative Division (originating from the former Association of Draughting, Supervisory and Technical Employees which amalgamated with the AMWU in 1991) which covers these employees;
● has significant structures and resources in place at the national and state levels to support the servicing of its members; and
● has an extensive network of trained workplace delegates.
[55] By contrast the ALAEA has, subject to one matter which I will deal with, no history of membership amongst Maintenance Staff. It is not bound by the AMWU T&S Award, the Maintenance Agreement or the Brisbane Maintenance Agreement. The evidence does not suggest that it is recognised by Qantas as a legitimate representative of employees under these instruments.
[56] The possible exception, described in the evidence of Ms Donellan and confirmed in the evidence of Mr Norris, is that in about 1999 the ALAEA recruited as members employees in Melbourne engaged in non-destructive testing in the line maintenance area who up until that point had been covered by the T&S Award. Upon this happening, Qantas apparently acquiesced in an extralegal process whereby such employees were somehow, without any involvement of the AIRC, purportedly transferred to the TSS Award. They have since been treated as being covered by the various enterprise agreements entered into between Qantas and the ALAEA, including the most recent TSS Agreement. The evidence does not disclose whether these employees have received any particular benefit from this purported transferral of union and award coverage. However, since they have not been treated as being covered by the T&S Award or the Maintenance Agreement (or its predecessors) for well over a decade, I will treat them as excluded from the analysis under s.158(4) of employees covered by those instruments.
[57] I therefore find that Maintenance Staff could more conveniently belong to the AMWU than the ALAEA.
[58] The AMWU has a long and successful history of representing Maintenance Staff in award matters, enterprise bargaining and disputes. The ALAEA has no such history of representation and, because it is a small and specialised organisation with limited resources, it does not have the capacity to readily undertake the representation of employees outside the areas of employment in which it has traditionally provided representation. Taking into account these matters, and the matters identified in paragraphs [54] and [55] above, I find that the AMWU would more effectively represent Maintenance Staff than the ALAEA.
[59] The s.158(4) condition is therefore satisfied with respect to Maintenance Staff.
Employees under the ASU Agreement (ETOM Staff)
[60] For similar reasons, I find that employees working in “Engineering Technical Operations & Maintenance Services” under the ASU Agreement (ETOM Staff), who as earlier stated would become eligible to join the ALAEA if sub-rule 3.3 is approved, could more conveniently belong to the ASU and be more effectively represented by the ASU than the ALAEA. As to the “more conveniently belong” limb of s.158(4), the evidence of Ms White, which was not challenged, demonstrated the following:
● The ASU is the largest union in Australia covering airline workers, with coverage in customer service, air freight, maintenance, engineering, catering, finance, administration, passenger and ground handling services, information technology, reservations and sales, load control and operations.
● The ASU has a very long history of membership and representation in the airline industry, including in respect of ETOM Staff.
● It is internally structured to provide specific representation to the airline industry through its National Airlines Industry Division, governed by a Council of 32 rank and file members.
● Although its largest airline membership is in the Qantas Group, it has membership in Virgin Australia and regional airlines as well as in 36 overseas airline operations with offices in Australia and a number of companies providing ground handling services to the airlines.
● It has an extensive workplace delegate structure, and provides training to its delegates.
● It has extensive staff resources dedicated to its airline membership.
[61] By contrast, there was nothing in the evidence to suggest that the ALAEA had any history of membership amongst ETOM Staff or even any desire to have them as members or to represent them. There was no suggestion in the evidence that any ETOM Staff desired ALAEA membership or representation. These matters lead me to conclude that ETOM Staff could more conveniently belong to the ASU than the ALAEA.
[62] The evidence similarly demonstrated that the ASU has effectively represented ETOM Staff over a long period of time. It has negotiated a number of enterprise agreements in its area of coverage with Qantas and various entities in the Qantas Group for the benefit of its members. It was the first union in Qantas to obtain paid parental leave benefits and 10% superannuation contributions, and has also obtained other important benefits including work/life balance protections, job sharing arrangements, provisions allowing for conversion from part-time to full-time employment, and minimum weekly hours for part-time employees. It devotes extensive resources to the representation of its airline membership, including ETOM Staff. By contrast, the ALAEA has never represented or sought to represent ETOM Staff, and there was nothing in the evidence to suggest it had the capacity or desire to do so. This leads to the conclusion that the ASU can more effectively represent ETOM Staff than the ALAEA.
[63] The s.158(4) condition is therefore satisfied with respect to ETOM Staff.
Conclusion re s.158(4)
[64] Because I have found that some of the persons who would become eligible for membership of the ALAEA could more conveniently belong to the AMWU or the ASU, and that the AMWU or the ASU could more effectively represent them, section 158(4) prohibits the grant of consent to the ALAEA’s proposed eligibility rules alteration in its current form unless I accept an undertaking from the ALAEA under s.158(5). Alternatively, it would be open to me to consent to the ALAEA’s alteration in part - that is, if the alteration was limited to making TSS Staff eligible for membership of the ALAEA, in relation to whom I have found that there is no organisation to which they could more conveniently belong or which could more effectively represent them. I will return to these matters after I have considered the discretionary issues raised by the objector unions in opposition to the ALAEA’s application.
Section 158(6) and (7)
[65] The objector unions did not contend that there was any agreement or understanding which might justify the refusal of consent under s.158(6). Nor did they contend that there was any s.133 order concerning representational rights which might justify refusal of consent under s.158(7).
Section 158(8) – Discretionary grounds for refusal of consent
[66] The discretionary grounds identified by the objector unions as justifying the refusal of consent to the ALAEA’s proposed eligibility rule alteration were primarily founded upon what the objector unions contended was a demonstrated history of the ALAEA recruiting as members persons who were not under its Rules eligible to join it.
[67] I am satisfied that the objector unions have made out the factual basis for their discretionary objections, in that the evidence clearly demonstrated that the ALAEA has since about 1986 systematically gone about enrolling as members and purporting to represent persons who were not eligible to be its members. The ALAEA made no real attempt to deny that it had engaged in this conduct.
[68] The very purpose of the ALAEA’s proposed rules change here was to legitimise its recruitment since 1986 of TSS Staff. That recruitment apparently began shortly after the first award for these staff, the Technical Salaried Staff (Qantas Airways Limited) Award 1986, was made. What first initiated that recruitment is unclear, but the ALAEA quickly became the major union in that area. As emerged in cross-examination of those members of the TSS Staff who were called by the ALAEA to give evidence, the ALAEA did not disclose to the TSS Staff that it recruited that they were not eligible to be members of the ALAEA until it emerged during the 2013 enterprise agreement negotiations that s.176 prevented the ALAEA from acting as the bargaining representative for TSS Staff.
[69] Mr Norris, who was the lead witness for ALAEA, attempted to portray this deficiency in the ALAEA’s eligibility rule as some sort of obscure technical problem which only emerged in 2013. He tried to justify the ALAEA’s conduct on the basis that TSS Staff were not considered to be outside its coverage because the ALAEA was a party bound by the applicable award and enterprise agreements. He said “When I came into the organisation that was what people thought, and nobody had really looked into the nuances of ... the legal aspects of the rules as such ...”.
[70] I reject that evidence. I am satisfied that the ALAEA in general, and Mr Norris in particular, were fully aware at all relevant times that TSS Staff were not eligible to join or be represented by the ALAEA. The terms of the ALAEA’s eligibility rule at all relevant times left no room for doubt that it did not cover TSS Staff (with the possible exception of those TSS Staff who are licensed aircraft mechanical engineers). This was well understood by the officers of the ALAEA. For example, in proceedings in the Australian Conciliation and Arbitration Commission in 1985 concerning the coverage of TSS Staff, the industrial officer representing the ALAEA (Mr Farnham) submitted “... in terms of demarcation, our area of membership is fairly clear. We only have those members in areas where they are licenced, and require[d] to utilise that licence in terms of their employment”. In correspondence from the ALAEA to the Industrial Registrar dated 4 September 2001, which was signed by the ALAEA’s Federal President and Federal Secretary and appears to have been drafted by Mr Norris, the ALAEA stated that “Our current eligibility Rules ‘3 – Constitution’ restricts membership to ‘engineers licenced’” but in addition that the ALAEA had representational rights for employees of Forstaff at Avalon Airport. This letter was sent in answer to a query from the Industrial Registrar as to what members might be precluded from election to officer positions if rule 22(e), which was then a proposed new rule which required the Registrar’s consent, was approved. The Registrar undoubtedly relied on the contents of that letter in subsequently approving rule 22(e). There was no suggestion in the letter that the ALAEA covered TSS Staff.
[71]I have earlier referred to the ALAEA’s recruitment of employees engaged in non-destructive testing in the line maintenance area in Melbourne in about 1999 who up until that point had been covered by the T&S Award. The evidence of Mr Donellan disclosed a further attempt by the ALAEA to enrol production planners in Melbourne who were until that time members of the AMWU. The evidence did not make clear whether that attempt had met with any permanent success. Mr Norris also said that the ALAEA had enrolled as members some technical salaried staff at the Virgin airline.
[72] The ALAEA has also since the late 1980s enrolled as members non-licensed aircraft mechanical engineers (AMEs) in general aviation, even though its sub-rule 3.1 (as well as its name) makes it perfectly clear that its membership was based on the holding of a licence to undertake, supervise and certify aircraft maintenance. “General aviation” was explained by Mr Norris to mean all airlines except mainline airlines. Mr Norris alleged that this had been done pursuant to an arrangement with the ACTU and other relevant unions including the AMWU.
[73] More recently, the ALAEA has begun recruiting AMEs within Qantas itself. In 2010, the ALAEA made an application for consent to be granted to an alteration to its eligibility rules which would have given it coverage of AMEs generally and technical salaried staff. After a protest by the AMWU caused the ACTU to request that the ALAEA desist from proceeding with its application, the ALAEA sought an indefinite adjournment of its application. However in April 2012 Mr Purvinas announced an intention in an email to “open membership of the ALAEA to Qantas AMEs” unless certain guarantees were forthcoming from the AMWU and the AWU to the effect that they recognised that the ALAEA had coverage of AMEs with a “Category A licence” and would not negotiate with Qantas for an enterprise agreement to cover such AMEs. Category A licences are those issued by the Civil Aviation Safety Authority under new licensing arrangements that commenced in 2011 which allows licence holders to certify more simple aircraft maintenance performed by themselves. Unlike the holder of a Category B1 or B2 licence, a Category A licence-holder cannot supervise or certify the maintenance work of another, with the result that they are not eligible to join the ALAEA. In response to Mr Purvinas’s email, Mr Michael Weitenberg, the Senior Vice President of the ALAEA, sent an email stating:
“Suggest we acquire the correct resignation process for the various unions for possible new members along with our application forms to make the transition simple and without hiccup and distribute to our trusted reps so as they can verbally advise the Ames easily.”
[74] Mr Purvinas’s email prompted the AWU, the AMWU and the CEPU on 30 April 2012 to file in Fair Work Australia (FWA) an application for an order under s.137A(1)(b) of the RO Act that the ALAEA did not have the right to represent under the RO Act or the FW Act the industrial interests of “employees classified as Aircraft Maintenance Engineers (AMEs) who are employed by Qantas Airways Limited”. The application was heard by a Full Bench of FWA on 11 and 12 July 2012. During the course of the hearing, the ALAEA conceded that its eligibility rules did not permit it to enrol AMEs as members, including AMEs with Category A licences, and that it did not have the right under the RO Act or the FW Act to represent the industrial interests of AMEs:
“MR NOLAN: ... can I just say to your Honours and Commissioner that it will have been apparent - I hope, at least - from the submissions that we've lodged pursuant to the directions that a fundamental issue that appeared to be between the parties - namely, the right of my client organisation to industrially represent and cover this class of employees, these AMEs if I can refer to them as that - has been dealt with in the submissions, and we made it quite clear that under its present coverage the ALAEA could not seek to enrol and represent under the Act non-licensed engineers.
...
SENIOR DEPUTY PRESIDENT ACTON: Mr Nolan, you say that under your current eligibility rules you're not eligible to cover and therefore represent under the Act non-licensed engineers.
MR NOLAN: That's right.
SENIOR DEPUTY PRESIDENT ACTON: Does that include AMEs who would have a category A licence?
MR NOLAN: That's right.
SENIOR DEPUTY PRESIDENT ACTON: So you concede you couldn't cover those - - -
MR NOLAN: That's right.
SENIOR DEPUTY PRESIDENT ACTON: - - - people under your current rules.
MR NOLAN: That's right, and the whole idea of the rules alteration application is to
confront this matter fairly and squarely and have that issue resolved in a direct and
straightforward way rather than via some kind of side wind in proceedings like this.
SENIOR DEPUTY PRESIDENT ACTON: So pending the rules case and the
determination of that rules case, would you be seeking to enrol category A AMEs?
MR NOLAN: We couldn't enrol and hold out to people - the category A AMEs the right to be a member of the ALAEA, because we couldn't hold out to them our rights to represent them industrially.
SENIOR DEPUTY PRESIDENT ACTON: Right. So the answer to that is, "No, we
wouldn't be seeking to enrol."
MR NOLAN: We wouldn't, but at the same time we've got the rules alteration application in. We would obviously seek expressions of interest from people or indications of support from people if they were inclined to join the ALAEA should the ALAEA's application be successful, and we wouldn't be prevented from doing that but we certainly would not be holding out to them - or making any representations that we have the right to represent them industrially under the Fair Work Act.
SENIOR DEPUTY PRESIDENT ACTON: How can they be members of the organisation if you don't have eligibility?
MR NOLAN: That's right. That's what I'm saying.”
[75] In a decision issued on 29 August 2012 21 the Full Bench dismissed the application, primarily on the basis that the ALAEA’s concessions effectively resolved the concerns which had caused the application to be filed in the first place.22
[76] Almost immediately after the Full Bench decision was issued, the ALAEA embarked upon a campaign to enrol AMEs as members and to seek to represent their industrial interests. AMEs were encouraged to resign their membership of their existing unions and to join the ALAEA through leaflets issued by the ALAEA, the provision of ALAEA information packs and resignation forms for their current unions, and approaches by ALAEA delegates. A notice posted on the ALAEA website in September 2012 referred to the application by the AWU, the AMWU and the CEPU as having “failed” and stated “Once the result of the case in FWA was known, the ALAEA decided that it would accept AMEs at Qantas as members ...”. The notice went on to state that the ALAEA had the capacity to represent the industrial interests of AMEs in various ways, and that it now had over 450 AMEs as members.
[77] After the ALAEA refused to give an undertaking to cease its enrolment of AMEs, the AWU, the AMWU and the CEPU made an application to the Federal Court for declarations that the ALAEA did not have the right under its Rules to enrol and represent AMEs and that the ALAEA had made false and misleading statements in relation to workplace rights in contravention of the FW Act. On 28 September 2012 the Federal Court (Buchanan J) determined to grant an application by the applicant unions for an interlocutory injunction restraining the ALAEA from recruiting AMEs pending the final hearing of the matter. 23 In his judgment Buchanan J said:
“The evidence establishes a sufficiently clear case for the purpose of the present interlocutory application that the respondent has commenced to act, and intends to act, inconsistently with the position it accepted and asserted before the Full Bench of FWA and upon which the Full Bench relied in rejecting the application to formally deny it the right to represent AMEs at Qantas, pending the hearing and determination of the respondent’s application before FWA to alter its rules.” 24
[78] The application before the Federal Court was eventually resolved on the basis of an undertaking made to the Court by the ALAEA in which it acknowledged that its eligibility rules as they then stood did not permit it to enrol AMEs as members (including those with Category A licences, but excluding those employed by Forstaff at Avalon Airport) and undertook not to take any steps to enrol or recruit such AMEs as members. The undertaking was to continue to apply unless and until the ALAEA obtained consent to an alteration to its eligibility rules allowing it to recruit such AMEs as members. The undertaking was noted in an order of the Court made on 28 February 2013 which discharged the interlocutory orders. There is no suggestion that the ALAEA has engaged in any conduct in contravention of that undertaking, although it is a little concerning that Mr Norris said in his evidence that he did not agree with the concession that the ALAEA could not enrol as members AMEs with Category A licences.
[79] In summary, the evidence has made it clear that over a period of more than 25 years the ALAEA has persistently and contumeliously enrolled as members and sought to represent persons who on any reasonable view did not fall within the scope of its eligibility rule. I consider this to be a serious matter. Eligibility rules are, and always have been, fundamental to the schemes of registration of representative organisations under the RO Act and its statutory predecessors. In R v Williams; Ex parte Australian Building Construction Employees' & Builders Labourers' Federation the High Court said 25:
“The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned ... such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization's proper coverage and field of operation ...”.
[80] Section 158 itself, in requiring the consent of the Commission to any alteration to an organisation’s eligibility rules, demonstrates the importance of eligibility rules to the statutory scheme. The ALAEA’s conduct described above represents a very substantial abrogation of its responsibilities as a registered organisation. For that reason, I broadly accept the objector unions’ submissions that there are strong discretionary grounds to refuse to consent to the ALAEA’s proposed change to its eligibility rule. As was made abundantly clear by the ALAEA itself, the principal if not the only reason for the ALAEA making the rules alteration was to overcome the difficulty that Qantas had decided, consistent with s.176 of the FW Act, to no longer recognise it as the bargaining representative of TSS Staff for the purpose of enterprise bargaining. Had that not occurred, it is doubtful whether the rules alteration or this application would ever have been made. To approve the application for the purpose of legitimising the past inappropriate industrial behaviour of the ALAEA would, I consider, be contrary to the objects of the RO Act.
[81] If organisational interests were the only interests to be considered in this matter, I would decline to consent to the ALAEA’s application. However, I consider that the critical consideration here is the interests of TSS Staff. They have primarily been represented de facto by the ALAEA since the late 1980s in what I have earlier found to be a competent fashion, and they wish that longstanding representation to continue. It is not their fault that the ALAEA did not in the late 1980s rather than now take steps to alter its eligibility rule so that it could legitimately represent them, nor is it their fault that the ALAEA has for so long failed to give them accurate advice as to the ALAEA’s legal capacity to represent them. The refusal of consent to the entirety of the ALAEA’s proposed eligibility rules alteration would probably have the result that they could no longer be represented, even on the existing de facto basis, by the ALAEA by reason of the position belatedly but legitimately adopted by Qantas concerning ALAEA representation of TSS Staff. The disruptive effect of this would be likely to have detrimental consequences for the proper industrial representation of TSS Staff.
[82] I consider that the appropriate way to deal with the serious discretionary issues raised by the objector unions is to approve the rules alteration in part only, so that it does not extend the ALAEA’s coverage beyond the TSS Staff which it has traditionally represented, and on the condition that the ALAEA provides an undertaking to the Commission that will ensure that its practice of enrolling as members and seeking to represent persons beyond the scope of its eligibility rules comes to a complete end.
Partial approval and undertakings
[83] As earlier stated, the alternatives available as a result of my conclusions concerning s.158(4) are partial approval of the proposed rules alteration or the acceptance under s.158(5) of an undertaking from the ALAEA which I consider appropriate “to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of that organisation and the eligibility rules of the other organisation” (the “other organisation[s]” for this purpose being the AMWU and the ASU).
[84] In respect of the second alternative, the ALAEA has offered the following undertaking as capable of acceptance under s.158(5):
“The Australian Licenced Aircraft Engineers Association (the “ALAEA”) shall, by itself, its officers or agents undertake to avoid demarcation disputes that might otherwise arise from an overlap between the eligibility rules of the Objector Unions and the eligibility rules of the ALAEA and in particular, would raise no objection to the participation by the Objector Union in industrial matters which might affect members of the relevant Objector Union.”
[85] Having regard to the inappropriate industrial behaviour of the ALAEA earlier described, I do not consider that this proposed undertaking is appropriate to be accepted under s.158(5). It imposes no specific obligation of any practical utility upon the ALAEA, and an undertaking not to object to other unions representing their own members is specious because there is no proper basis for such an objection in the first place.
[86] I consider that partial and conditional consent to the rules alteration is the appropriate course to be taken having regard to my conclusions concerning s.158(4) as well as the discretionary issues. Partial consent will involve the scope of the proposed alteration being limited so that only those TSS Staff traditionally represented by the ALAEA - that is, employees covered by the TSS Award and the TSS Agreement - will become eligible for membership of the ALAEA because of the alteration. The limitation must be expressed in a way that prevents the ALAEA from repeating the conduct in which it engaged in about 1999 when it recruited employees in Melbourne engaged in non-destructive testing in the line maintenance area and then had them moved into the TSS Award.
[87] Conditional consent will involve the ALAEA providing an 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.
[88] Because the precise terms upon which partial and conditional consent might be given to the proposed rules alteration have not to this point been dealt with in the parties’ submissions, I will give them an opportunity to make further submissions about these matters.
Conclusion
[89] The matter will be re-listed for a further hearing concerning the terms upon which partial and conditional consent may be given to the ALAEA’s proposed alteration to its eligibility rules consistent with the above reasons for decision.
VICE PRESIDENT
Appearances:
J. Nolan of counsel with G. Norris for the Australian Licenced Aircraft Engineers Association
J. Pearce of counsel with J. Moriarty for the objector unions
Hearing details:
2014.
Sydney:
27 and 28 March, 11 April.
1 (2000) 100 IR 296
2 Acts Interpretation Act 1901, ss.33(2A)
3 Bowling v General Motors - Holden’s Pty Ltd (1980) 50 FLR 79 at 91
4 (1999) 93 IR 365
5 Ibid at [169]
6 (1974) 157 CAR 623
7 Ibid at 627-628
8 (1999) 93 IR 365 at [170]-[171]
9 Print H6763 (27 January 1989)
10 Re CPSU (2000) 100 IR 296 at [90]
11 NTEU v CPSU (1999) 93 IR 365 at [181]-[197]; Re CPSU at [88]
12 NTEU v CPSU at [202]-[204]
13 NTEU v CPSU at [212]-[213]
14 Re CPSU at [95]
15 NTEU v CPSU at [215]
16 (2002) 120 FCR 527, 114 IR 185
17 Ibid at [43]-[44] per Gray and Moore JJ, [142] per Merkel J
18 (2007) 170 IR 121
19 Exhibit 16
20 See cl.17 of the AMWU T&S Award; Appendix B Table 2 of the Maintenance Agreement; Appendix B Table 2 of the Brisbane Maintenance Agreement.
21 [2012] FWAFB 7398
22 Ibid at [32]
23 AMWU v ALAEA [2012] FCA 1074
24 Ibid at [23]
25 (1982) 153 CLR 402
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