“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v WTH Pty Ltd T/A Avis Australia At Melbourne Airport

[2013] FWC 3229

[2013] FWC 3229

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.236—Majority support determination

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
WTH Pty Ltd T/A AVIS Australia At Melbourne Airport
(B2013/785)

DEPUTY PRESIDENT GOOLEY MELBOURNE, 28 MAY 2013

Application for a majority support determination.

[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers Union (AMWU) made an application for a majority support determination of employees of WTH Pty Ltd trading as AVIS Australia employed at Melbourne Airport (Avis.

[2] The AMWU presented a petition of employees of Avis to support their application.

[3] The application for the majority support determination was opposed by Avis, primarily because it submitted that the AMWU did not have coverage of the relevant employees, and therefore could not be a bargaining representative for employees and could not make the application. Avis further submitted that, even if the AMWU was a bargaining representative for some employees, it was only a bargaining representative for a small percentage of the employees and, it would not be reasonable in all the circumstances to make a majority support determination.

The Legislative Framework

[4] Section 176 of the Fair Work Act 2009 (the FW Act) provides as follows:

“176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

...

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.”

[5] Section 236 of the FW Act sets out who can apply for a majority support determination as follows:

“236 Majority support determinations

(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to the FWC for a determination (a majority support determination) that a majority of the employees who will be covered by the agreement want to bargain with the employer, or employers, that will be covered by the agreement.

(2) The application must specify:

(a) the employer, or employers, that will be covered by the agreement; and

(b) the employees who will be covered by the agreement.”

[6] The FW Act makes it clear that an application for a majority support determination may only be made by a bargaining representative of employees, and a union is not a bargaining representative for its members, unless the union is able to represent the industrial interests of the employees in relation to the work performed by the employees.

The evidence

[7] Avis is engaged in the car rental business. 1 The relevant location of the business for the purpose of this application is Melbourne Airport.

[8] The evidence established that when the cars are no longer rented out, they are either returned to the manufacturer or are sold by Avis. 2 Those vehicles that are returned to the manufacturer are “prepared to be inspected by the manufacturer and then handed back.”3 Those that Avis sells itself are handed onto one of its yards.4

[9] Avis relevantly employs Mechanics, Vehicle Services Agents (VSAs), Vehicle Services Leads (VSA Leads) and Transport Drivers at Melbourne Airport.

[10] VSAs are employed to clean the interior and exterior of rental vehicles. As part of that process the VSAs are required to drive the vehicles to the car wash. 5 The position description provides that one of the duties of a VSA is to detail cars.6

[11] Ms Heidi Gromer gave evidence that “the majority of VSAs’ time is spent cleaning rental vehicles. In cleaning the interior of vehicles, VSAs are required to vacuum, wipe the dashboard area, remove any rubbish and clean the windscreen and windows.” 7 VSAs drive the cars to the carwash for external cleaning and hand wash those parts of the car that are not adequately cleaned by the car wash.8

[12] VSA Leads operate the car wash as well as perform cleaning and driving duties. 9 In addition the position description provides that VSA Leads are required to “detail cars to a high standard.”10

[13] Drivers move vehicles between Avis locations.

[14] It was not disputed that if the AMWU had members employed by Avis as mechanics, that the AMWU would be entitled to represent the industrial interests of those members in relation to the work they performed.

[15] The AMWU provided a list of its members employed by Avis on a confidential basis and Avis provided a list of its employees. A comparison of the lists established that none of the mechanics employed by Avis were members of the AMWU. The issue then is whether the AMWU has coverage of the other employees.

The AMWU rules

[16] The AMWU relied upon rule 1E to support its claim that it is able to represent the industrial interests of VSAs and VSA Leads.

[17] Rule 1E provides as follows:

“1E. Without in any way limiting or being limited by the sub-rules 1A, 1B, 1C, 1D, 1F, 1G, 1H and 1I, the Union shall also consist of an unlimited number of employees engaged in or usually engaged in the process, trade or business connected with or incidental to the manufacture, assembling or repairing of carriages, carts, wagons, trucks, railway cars, tram cars, motor cars, motorcycles, sidecars, aircraft and other vehicles used in air transit and all other vehicles or parts thereof and whether in wood and/or metal and/or other material, preparation for sale of motor vehicles (pre-delivery) and sale by auction of any motor vehicle, (including detailing work) together with any persons appointed as officers of the Union and elected as members thereof.”

The submissions of the AMWU

[18] The AMWU submitted that this rule was an industry rule. 11 The AMWU submitted that what needs to be determined is whether the trade or business of Avis is:

“(a) in either the repair of motor vehicles (or parts thereof) or the preparation for sale of motor vehicles (pre- delivery); or

(b) in any connection of a substantial character to either the repair of motor vehicles (or parts thereof) or the preparation for sale of motor vehicles (pre- delivery); or

(c) incidental to either repair of motor vehicles (or parts thereof) or the preparation for sale of motor vehicles (pre-delivery). 12”

[19] The AMWU submitted that Avis is engaged in a process or business connected with or incidental to either the industry of repairing of motor vehicles or parts thereof or the industry of the preparation for sale of motor vehicles. 13

[20] It is submitted that “the intrinsic nature and purpose of the services provided by Avis at its Melbourne Airport operations is to maintain (including by repairing, washing and detailing) a fleet of vehicles for the purpose of renting out those vehicles to customers.” 14

[21] The AMWU submitted that the word “repairing” in rule 1E is not limited to the work of mechanics. 15 It was submitted that the job description of VSAs and VSA Leads “is work that is substantially concerned with the repair and restoration of vehicles to their best condition.”16 It was submitted that their work fits the definition of repair work.

[22] The AMWU also submitted that the sale of vehicles is a substantial and ongoing part of Avis’ business. It was submitted that the preparation for sale of motor vehicles is connected with or incidental to Avis’ business. 17 It was noted that the mechanics position description requires them to prepare cars for hand back and sales and remove fuel from sales vehicles.18

[23] It was submitted that the work of VSAs and VSA Leads which involves repairing, cleaning and detailing is work which is connected with or incidental to preparation for sale of vehicles. 19

[24] The AMWU further submitted that this work by VSAs and VSA Leads is pre-delivery work. 20

[25] It was submitted that the detailing work performed by VSAs and VSA Leads is work performed in relation to the preparation for sale of motor vehicles. 21

[26] It is submitted that the reference in rule 1E to detailing work is not limited to sale by auction of any motor vehicle because of the construction of the sentence and applies to preparation for sale of motor vehicles (pre-delivery). 22

[27] It was submitted that Avis sells, as part of its business, some of its cars directly and therefore Avis is engaged in work connected with or incidental to the preparation for sale of its cars. 23

The submissions of Avis

[28] Avis submitted that because rule 1E is an industry rule, and given there is no ambiguity in the eligibility rule “it is not appropriate to have regard to rule 1E at all in order to determine the question of eligibility.” 24

[29] Avis submitted that VSAs and VSA Leads do not perform work that is connected with or incidental to the repairing of motor cars. 25 Avis submitted that VSAs and VSA Leads did not repair vehicles. Avis cited the decision of the Federal Magistrates Court in Fair Work Ombudsman v Kingsford Carwash26to support its submission that employees engaged in car cleaning duties were not engaged in repairing vehicles. Avis therefore submitted that the work performed by VSAs and VSA Leads was not connected with or incidental to the repairing of motor vehicles.27

[30] Further it was submitted that the work performed by the VSAs and VSA Leads was not connected with or incidental to the preparation for sale of motor vehicles.

[31] It submitted that Avis’ “substantive operations are not connected with or incidental to the sale of motor vehicles.” 28

[32] Further it was submitted that the VSAs and VSA Leads do not carry out any work on vehicles once they cease to be rental vehicles as only mechanics work on returning vehicles to the manufacturers or for sale. 29

[33] It was also submitted that that VSAs and VSA Leads do not perform detailing work that is connected with or incidental to the preparation for sale of vehicles. 30

Conclusions

[34] It is accepted by all parties that rule 1E is an industry rule. Therefore the AMWU is entitled to enrol any person employed by an employer which is engaged in the process, trade or business connected with or incidental to the ... repairing of carriages, ... preparation for sale of motor vehicles (pre-delivery) and sale by auction of any motor vehicle, (including detailing work).

[35] In Re G.J.E. Pty Ltd 31, a Full Bench of the Fair Work Commission summarised the approach to the interpretation of industry rules as follows:

“[18] Industrial law provides that whether or not the enterprise of an employer is in a particular industry is a question of fact14 determined by the “substantial character” of the enterprise in which the employer and its employees are concerned.15 However, the enterprise of an employer can have more than one character and be in more than one industry.16 Where an enterprise has more than one character it is not necessary to decide which is predominant,17 but a character must be substantial before it can ground a conclusion that the enterprise is in a particular industry.18

[19] A majority of a Full Bench of the Australian Industrial Relations Commission (AIRC) summarised the relevant law in Dyno Nobel Asia Pacific Limited v Construction, Forestry, Mining and Energy Union¹⁹ as follows:

“[51] Drawing the High Court authorities together, we think the position is as follows:

(a) An eligibility rule, or part of an eligibility rule, that simply refers to persons employed or engaged “in or in connection with” a specified industry or industries is properly characterised as a conventional industry rule and the discremen of eligibility under such a rule is the industry of the employer, that is, whether the trade or business of the employer is in or in connection with the specified industry or industries.

(b) Whether or not the trade or business of an employer is in or in connection with a particular industry is a question of fact.

(c) The answer to that question of fact is determined by the “substantial character” of the trade or business of the employer and all of its employees and requires a consideration of the business of the employer as a whole.

(d) The business of an employer can be “in or in connection with” more than one industry. This outcome can arise in different ways:

(i) The business of the single employer is a single integrated enterprise but nevertheless operates substantially in or in connection with two or more industries simultaneously. This may be because:

• There is an overlap between industries and the business operates in the area of overlap (in such a case the same business can be described in different ways placing the business in either industry so that it has a “substantial character” that places it in each industry); and/or

• The nature of the single integrated business is such that the business itself overlaps two or more distinct industries in such a way that it has a “substantial character” within each of those industries.

(ii) The overall business of the single employer is properly seen as being constituted by two or more distinct businesses or enterprises each of which has a different “substantial character”.

(e) The mere supply of goods or services to a business in a particular industry is not, of itself, sufficient to render the business of the supplier one that is “in connection with” the industry of the business supplied, even if those goods are essential to the operation of that business.

(f) Where a conventional industry rule applies in relation to a distinct business or enterprise of an employer, all of the employees in that business or enterprise are eligible for membership of the union. (Footnotes omitted)”.”

[36] I find that the substantial character of Avis’ business is the car rental business. Avis does not operate substantially in or in connection with the industries of the preparation of vehicles for sale or the repair of vehicles or detailing vehicles.

[37] It is not necessary for this decision to determine if the work performed by VSAs and VSA Leads is repair work, nor is it necessary to determine if the reference to detailing work is limited to the sale by auction of any motor vehicle. These submissions focused on the work of the employees rather than the industries of the employer. If the substantial character of the business of Avis was in the industries described in rule 1E then all the employees would be eligible to be members of the AMWU.

[38] As I have found that the substantial character of Avis is the car rental business, the AMWU is not able to represent the industrial interests of VSAs and VSA Leads. As none of the mechanics are AMWU members the AMWU is not a bargaining representative of the relevant employees and therefore it does not have standing to make a majority support declaration application. The application is therefore dismissed.

DEPUTY PRESIDENT

Appearances:

A Moussa and L Weber for the AMWU.

S Millen for Avis.

Hearing details:

2013.

Melbourne:

April 26.

 1   Exhibit R2 at [5]

 2   Transcript PN 98

 3   Ibid

 4   Ibid

 5   Exhibit R2 at [11]-[12]

 6   Ibid at HG3

 7   Ibid at [11]

 8   Ibid

 9   Ibid at [13]-[14]

 10   Ibid at HG3

 11   AMWU submissions dated 3 May 2013 at [23]

 12   Ibid at [35]

 13   Ibid at [37]

 14   Ibid at [38]

 15   Ibid at [40]-[42]

 16   Ibid at [43]

 17   Ibid at [46]-[47]

 18   Ibid at [47]

 19   Ibid at [48]

 20   Ibid at [49]-[50]

 21   Ibid at [54]

 22   Ibid at [55]-[58]

 23   Ibid at [59]

 24   Respondent’s supplementary submissions dated 10 May 2013 at [17]

 25   Ibid at [20]

 26 [2012] FMCA 464 at [12]

 27   Respondent’s supplementary submissions dated 10 May 2013 at [23]

 28   Ibid at [25]

 29   Ibid at [28]

 30   Ibid at [28]-[29]

 31   2013 FWCFB 1705

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