Flight Attendants’ Association of Australia

[2020] FWCD 2968

[2020] FWCD 2968

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009

s.159—Alteration of other rules of organisation

Flight Attendants’ Association of Australia

(R2019/163)

MURRAY FURLONG MELBOURNE, 18 JUNE 2020

Alteration of other rules of organisation.

1. On 19 December 2019 the Flight Attendants’ Association of Australia (the Association) lodged with the Fair Work Commission a notice and declaration setting out particulars of alterations to its rules.

1. On the information contained in the notice, I am satisfied the alterations have been made under the rules of the organisation.

1. The particulars:

·   Insert a Preamble at the beginning of the current rules;

·   restyle existing Rules 1 – 4 as Part A – The Foundation Rules;

·   restyle existing Rules 5 – 58 and Schedule 1 as Part B – The Pre-unification Rules;

·   insert a new Part C – Unified Rules, incorporating new Part C Rules 5 - 59;

·   insert a new Part D – De-Unified Rules, incorporating new Part D Rules 5 – 54; and

·   inset a new Part E – Transitional Rules, incorporating new Part E Rules 1 – 19.

1. Appendix A of the Association’s rules forms part of the organisation’s eligibility rules. It is unchanged and operates in conjunction with Part A.

1. The alterations operate as a package. They fundamentally change the Association’s structure. They also allow for the configuration to revert to its current form if the new arrangements are found to be unsuitable.

1. At present the Association comprises two Divisions: the International Division and the National Division.

1. A member who is predominantly engaged in the operation of flights carrying passengers on long haul international routes to and from locations within Australia is allocated to the International Division. A member who is predominantly engaged in the operation of flights carrying passengers on short haul, domestic or regional routes within Australia is allocated to the National Division.

2. The Divisions operate as discrete actors with high degrees of autonomy. The role of the national collective bodies within the Association has generally been secondary to those of the Divisions.

1. Some time ago a unified structure was proposed. Rule alterations were certified which facilitated a merger of the Divisions, through a staged procedure. Ultimately, that procedure never ran its course. Approximately four years ago further alterations were transacted which recast the Association in its present guise.

1. Against that background, it is proposed that:

·   the Part A - Rules will apply in all circumstances, comprising the Association’s Name, Registered Office, Objects and Eligibility.

·   the Part B – Unamended Rules contain the current Divisional structure and associated governance and administrative arrangements. These rules apply until the rules in Part C (or Part D as the case may be) come into force and are subject to the Transitional Rules in Part E.

·   the Part C – Unified Rules are intended to come into force and to apply from 30 June 2020, to the exclusion of the Rules in Part B. They abolish the Divisions, establish a unified structure and set out associated governance and administrative arrangements. Under the Part C Rules, members of the organisation only associated with the former Divisions, on a nominal basis, to form electorates so national officers can be elected. The Part C Rules are subject to the Transitional Rules in Part E.

·   the Part D – De-Unified Rules also come in to force from 30 June 2020. However, they lie dormant unless and until a de-unification decision is made under Rule 59 of the Part C rules. Once operative, they apply to the exclusion of the Part C rules. They reinstitute the Division based structure and provide for associated governance and administrative arrangements.

·   The Part E – Transitional Rules apply upon certification. They provide for the conduct of the inaugural election of officers in the unified structure, so those officers can take up office under the Part C rules. Subject to any restrictions on the conduct of the elections occasioned by the co-vid 19 virus, these elections are intended to commence shortly after the proposed rules are certified. The Transitional Rules also provide for administrative matters necessary to affect the unification of the two Divisions under the Part C unified rules.

1. Effectively, the rules of the Association are three rulebooks in one. The constituent elements of Parts B, C and D operate to the exclusion of one another, depending on the circumstances. The current rules—modified by the transitional rules intended to facilitate elections for office under the unitary structure—operate until the in inaugural elections are complete. Thereafter, the unitary structure that commences after June 30 (subject to the conduct of the relevant elections) is operative. It remains so unless a decision to de-unify is taken. The current governance and administrative arrangements have by and large been replicated in both the proposed Part C and Part D rules, modified where necessary to accommodate a unified structure or a Divisional structure, as the case may be.

1. The degree of contingency associated with the operation of the Part D rules is novel. However, I am unable to discern any provision of the Fair Work (Registered Organisations) Act 2009 (the Act) which it is contrary to. Nor, having examined the relevant caselaw associated with the Act and its legislative predecessors am I able to conclude that it is contrary to law.

1. The frequently cited comments of Deane J in In Municipal Officers’ Association of Australia v Lancaster [1] are apposite:

The constraints and restrictions imposed, by positive and negative requirements of the Act and regulations, upon the freedom of the members of an organisation to select, for themselves, the rules which they consider appropriate for their particular organisation, are real and significant. It cannot, however, be too strongly stressed that, subject to those constraints and restrictions, the content of the rules of a registered organisation is primarily a matter for the members. (my emphasis).

1. I appreciate the historical circumstances surrounding the Association’s attempts to determine its optimal structure. It is appropriate in this case to adopt rules that both transition the Association to a unified structure but, if necessary, allow de-unification and the associated reintroduction of autonomous Divisions. Whether the Part D rules will have any work to do is a matter for the Association and its members.

1. On 15 May 2020, Ms Teri O’Toole, the Divisional Secretary of the Association’s International Division, gave consent, under subsection 159(2) of the Act, for the Delegate to make various amendments to the alterations for the purpose of correcting typographical, clerical or formal errors. Accordingly, the following corrections have been made:

·   In proposed rule Part C Rule46(2)(a) references to “Divisional Officer”, “Divisional Councillor” and “relevant Divisional Council” have been changed to “Officer”, “Councillor” and “Federal Council”

1. In my opinion, the alterations comply with and are not contrary to the Act, the Fair Work Act 2009, modern awards and enterprise agreements, and are not otherwise contrary to law. I certify accordingly under subsection 159(1) of the Act.

DELEGATE OF THE GENERAL MANAGER

[1] (1981) 54 FLR 129 at 164 – 165.

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