Civil Air Operations Officers' Association of Australia, The

[2013] FWC 2882

[2013] FWC 2882

FAIR WORK COMMISSION

DECISION

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

Civil Air Operations Officers' Association of Australia, The
(D2010/5016)

VICE PRESIDENT HATCHER SYDNEY, 13 MAY 2013

Application for the alteration of eligibility rules.

[1] On 25 October 2010, the Civil Air Operations Officers’ Association of Australia (the Association) filed an application for consent, under s.158 of the Fair Work (Registered Organisations) Act 2009, to alterations to Rule 6, Constitution, of its rules. Rule 6 contains the Association’s eligibility rules. The Association filed a revised version of its application on 4 November 2010, and it is that revised application upon which the matter now proceeds.

[2] The revised application contained, in substance, four amendments to Rule 6:

(1) expansion of the Association’s coverage to include Flight Information and Flight Service Officers (known as AUSFIC staff) working for Airservices Australia;

(2) inclusion of the study and investigation of air safety incidents (not just accidents) in the description of duties of persons employed by the Civil Aviation Authority and Airservices Australia or any successor agency;

(3) inclusion of a reference to Air Traffic Control Line Managers in the list of specified positions in the Civil Aviation Authority and Airservices Australia or any successor agency; and

(4) a correction in spelling in one instance from “license” to “licence” (being the noun rather than the verb).

[3] Notice of receipt of the Association’s application was published in the Commonwealth of Australia Gazette, Government Notices, GN 44 on 10 November 2010.

[4] On 14 December 2010, one day prior to the closure of the permitted period for objections, the Community and Public Sector Union (CPSU) filed an objection to the Association’s application. At an initial directions hearing before Senior Deputy President Kaufman, the Association was directed to confer with the CPSU concerning its objection, and the matter was adjourned. Eventually an agreement was reached between the Association and the CPSU to the effect that the CPSU would withdraw its objection on the basis that the Association would not continue to seek the Fair Work Commission’s consent to the first of the four rule changes identified in paragraph [2] above. The CPSU confirmed this agreement in a letter to the Commission dated 2 April 2013 and signed by Kristin Barlow, the CPSU Legal Officer.

[5] On the basis of this agreement, the Association now seeks consent to rules alterations (2), (3) and (4) identified in paragraph [2] above only. No amendment to the Association’s application is necessary for this purpose, since under s.158(2) it is open to the Commission to consent to any eligibility rules changes in whole or in part.

[6] Section 158 specifies a number of statutory pre-requisites to the grant of consent to changes or alterations to the eligibility rules of an organisation. I will deal with each of these in turn.

[7] Section 158(2) requires that the Commission be satisfied that the change or alteration has been made under the rules of the organisation. I am satisfied that this requirement was met, based on the information contained in paragraphs 8 and 9 of the declaration of Robert Mason, the President of the Association, which was dated 4 November 2010 and accompanied the revised application, and my analysis of the requirements of Rule 49, Alterations to the Rules and By-Laws, of the Association’s rules.

[8] Under s.158(4), the Commission is required not to 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 Commission, another organisation to which those persons could more conveniently belong and that would more effectively represent those members. The Association submitted that the alterations, if consented to, would not make any new class of persons eligible for membership. In particular, it submitted that the addition of the reference to “Air Traffic Control Line Managers” in Rule 6 merely reflected new nomenclature for existing positions which were already within the scope of the Association’s eligibility rule. I accept that submission. That being the case, s.158(4) is not applicable to the consideration of the Association’s application. Nor is s.158(5).

[9] Section 158(6) gives the Commission the discretion to refuse consent if it is satisfied that the alteration to the eligibility rule contravenes an agreement or understanding concerning representational rights to which the organisation is a party. No agreement or understanding relevant to the Association’s rules alterations as pressed exists. Section 158(7) also gives the Commission the discretion to refuse consent if it is satisfied that the alteration to the eligibility rule would change the effect of a demarcation order made under s.133 in a way which would give rise to a serious risk of a detrimental demarcation dispute. No demarcation order relevant to the rules alterations here exists.

[10] Section 158(8) confirms that the Commission has a residual discretion to refuse consent to an alteration to an organisation’s eligibility rules. There are no discretionary considerations which would cause me to refuse consent in this case.

[11] I consent to those parts of the Association’s rules alterations which it continued to press in the light of its agreement with the CPSU. Those alterations are set out in Schedule A to this decision, with the new words that have been inserted printed in italics and underlined, and any deleted words appearing with a line through them. The alterations will take effect on and from 20 May 2013.

VICE PRESIDENT

Appearances:

J. Ponton for the Civil Air Operations Officers’ Association of Australia

K. Barlow for the Community and Public Sector Union

Hearing details:

2013.

Sydney:

May, 13.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR536456>

SCHEDULE A

Rule 6 is amended to read as follows:

6 - CONSTITUTION

(A) The Association shall consist of an unlimited number of persons employed, or usually employed by the Civil Aviation Safety Authority and Airservices Australia, or of any agency or instrumentality of, or constituted under the laws or regulations of the Commonwealth of Australia, which may hereafter assume the administrative responsibilities of the Civil Aviation Safety Authority or Airservices Australia, or any successors, assignees or transmittees of the current employers, being persons whose duties include any of the following:

(1) the prescription of the functional requirements in relation to Aviation Regulation and air traffic control of:-

(a) air routes and airways,

(b) aid to air navigation,

(c) aerodromes,

and the supervision of the application of the requirements so prescribed;

(2) the prescription of the procedures to be observed in:-

(a) the provision of an Air Traffic Control service,

(3) the study and investigation of air safety accidents and incidents and aircraft accidents and incidents insofar as such studies relate to matters specified in this Rule.

(B) Without limiting the generality of clause (A) hereof, the persons holding, either permanently or temporarily, any of the following positions in the Civil Aviation Safety Authority and Airservices Australia, or any position which may be substituted therefor, and the duties of which are not materially different therefrom, shall be eligible for membership of the Association:-

Air Traffic Controller (ATC), Air Traffic Control Manager (ATCM), Airways Data Systems Officer (ADSO), Flight Data Co-ordinator (FDC), Data Systems Specialists, Data Systems Assistants, Exercise Development (EXDEV) Officer, Systems Supervisor (SS), Air Traffic Services (ATS) Specialist, Air-Traffic-Controller-in-training, Trainee-Air-Traffic-Controller, Air Traffic Services Manager, Air Traffic Control Line Manager, Air Traffic Control Instructor, Simulator Support Officer (SSO), Target Generator Operator (TGO), Operations Support Manager,

and any of these positions held under contract or any positions which require a person to hold or have held an Air Traffic Control Licence.

(C) In addition to the persons identified in Clauses (A) and (B) hereof, civilian employees of the Department of Defence performing any function for which the holding of a license licence as an air traffic controller, or having held such a licence within 5 years prior to appointment, is a requirement.