iCabin Crew Connect

[2013] FWC 4143

[2013] FWC 4143

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work (Registered Organisations) Act 2009
s.18(c) RO Act - Application for registration by an enterprise union

iCabin Crew Connect
(D2012/217)

VICE PRESIDENT WATSON SYDNEY, 27 JUNE 2013

Application for registration as an enterprise association - Whether majority support exists - Fair Work (Registered Organisations) Act 2009 - ss. 18, 20, 158 - Fair Work (Registered Organisations) Regulations 2009 - rr. 21, 23.

Introduction

[1] This decision concerns an application made under s.18(c) of the Fair Work (Registered Organisations) Act 2009 (RO Act) by iCabin Crew Connect (iCCC). The matter was listed for hearing on 14 May 2013. At the completion of the hearing, the application was dismissed. I indicated that I would publish reasons for my decision at a later date. This decision sets out my reasons for dismissing the application.

[2] The application was made on 31 July 2012, and published in the Commonwealth of Australia Gazette No GN 35 on 5 September 2012 in accordance with regulation 21 of the Fair Work (Registered Organisations) Regulations 2009 (RO Regulations). A copy of the application was also published on the Fair Work Commission’s website.

Objectors

[3] Regulation 23 of the RO Regulations provides for objections to the application to be lodged within 35 days of the application being published in the Gazette. Objections were received from Virgin Australia Pty Ltd (Virgin), the Australian Municipal, Administrative, Clerical and Services Union (ASU), the Transport Workers’ Union of Australia (TWU) and the Flight Attendants’ Association of Australia (FAAA).

[4] iCCC and the ASU were able to reach an agreement to resolve the ASU’s objection.

Background

[5] iCCC seeks registration as an enterprise association to represent certain cabin crew members employed by Virgin Australia Pty Ltd. Its eligibility rule at the time of iCCC making the application includes persons employed as cabin crew on airline services operated or wet-leased by Virgin Australia Airlines Group of Companies.

[6] Currently, cabin crew employees of Virgin Australia Airlines Pty Ltd are eligible to become members of the FAAA. It was the submission of iCCC that part of its purpose in becoming an association and seeking registration as an enterprise association was that members of the FAAA feel that the FAAA has too much focus on cabin crew employed by Qantas, and that the interests of Virgin cabin crew were not properly represented.

The proceedings

[7] At the hearing on 14 May, Ms C Summers, Ms A Barlow and Mr C Worthy appeared for iCCC. Mr J Nucifora appeared for the ASU. Mr M Gibian of counsel appeared for the TWU, Mr P Gardner of counsel appeared for the FAAA and Mr T Saunders of counsel appeared for Virgin.

[8] At the commencement of the proceedings, leave was sought by iCCC to amend its rules. In part, this was due to irregularities with the rules in the original application raised by the Fair Work Commission’s regulatory compliance branch. Leave was also sought in relation to an amendment of the eligibility rule, in order to satisfy the terms of a settlement agreement with the ASU regarding its objection.

[9] The ASU agreed to withdraw its objection in exchange for an undertaking by iCCC to amend its eligibility rules. iCCC provided the ASU with a letter of undertaking, and the ASU sought to have the undertaking considered under s.158(5) of the RO Act. This document was filed in the Commission prior to the hearing. Section 158(5) allows the Commission to waive the normal requirements for variation of rules if it accepts an undertaking from an organisation seeking a variation of its eligibility rules to avoid a demarcation dispute with another registered organisation which might otherwise arise from an overlap in their respective eligibility rules.

[10] The FAAA objected to this course on the basis that iCCC did not correctly adopt its rules during its inaugural meeting, and as such there were no valid rules to be amended. During the proceedings, however, it was decided with consent of the parties that a number of technical issues relating to the application should be dealt with prior to any merits issues being determined. I decided to consider first the requirement that a majority of the persons eligible for membership of iCCC support its registration as an enterprise association.

The legislation

[11] Section 18C of the RO Act deals with federally registrable enterprise associations:

“(1)  An enterprise association is an association the majority of the members of which are employees performing work in the same enterprise.

(2)  An enterprise association is federally registrable if:

(a)  it is a constitutional corporation; or

(b)  some or all of its members are federal system employees; or

(c)  the employer or employers in relation to the relevant enterprise are constitutional corporations; or

(d)  the relevant enterprise operates principally within or from a Territory; or

(e)  the relevant enterprise is engaged principally in trade or commerce between Australia and a place outside Australia; or

(f)  the relevant enterprise is engaged principally in trade or commerce among the States; or

(g)  the relevant enterprise is engaged principally in trade or commerce within a Territory, between a State and a Territory or between 2 Territories; or

(h)  the relevant enterprise is engaged principally in the supply of postal, telegraphic, telephonic or other like services; or

(i)  the relevant enterprise is engaged principally in banking (other than State banking not extending beyond the limits of a State); or

(j)  the relevant enterprise is engaged principally in insurance (other than State insurance not extending beyond the limits of a State); or

(k) the relevant enterprise is in Victoria, and the provisions of this Act that would apply to the association (both before and after registration), fall within the legislative power referred to the Commonwealth under the Commonwealth Powers (Industrial Relations) Act 1996 of Victoria.

[12] Section 20C sets out the criteria for registration of an enterprise association:

“(1)  The FWC must grant an application for registration made by an enterprise association that, under section 18, may apply for registration as an organisation if, and only if:

(a)  the association:

(i)  is a genuine association of a kind referred to in paragraph 18(c); and

(ii)  is an association for furthering or protecting the interests of its members; and

(b)  the association is free from control by, or improper influence from:

(i)  any employer, whether at the enterprise in question or otherwise; or

(ii)  any person or body with an interest in that enterprise; or

(iii)  any organisation, or any other association of employers or employees; and

(c)  the association has at least 20 members who are employees; and

(d) the FWC is satisfied that the association would conduct its affairs in a way that meets the obligations of an organisation under this Act and the Fair Work Act; and

(e)  the rules of the association make provision as required by this Act to be made by the rules of organisations; and

(f)  the association does not have the same name as that of an organisation or a name that is so similar to the name of an organisation as to be likely to cause confusion; and

(g)  the FWC is satisfied that a majority of the persons eligible to be members of the association support its registration as an organisation; and

(h)  a majority of the members present at a general meeting of the association, or an absolute majority of the committee of management of the association, have passed, under the rules of the association, a resolution in favour of registration of the association as an organisation; and

(i) the registration of the association would further Parliament's intention in enacting this Act (see section 5) and the object set out in section 3 of the Fair Work Act.”

[13] Each of these criteria must be satisfied for the application for registration to be granted. The criterion contained in s.20(1)(g) was identified as the first matter to be considered in the hearing on 14 May 2013.

Majority Support

[14] In order to meet the criterion in s.20(1)(g) the applicant needs to satisfy the Commission that a majority of persons eligible to be members of the association support its registration as an organisation.

[15] The approach to this criterion was considered by Vice President McIntyre in the Postal Delivery Officers Union case. 1 His Honour said the following in relation to the approach to be adopted in relation to an identical statutory test:

“[287] The word "majority" in s.189(4)(g) introduces a degree of mathematical exactitude. I need to know the number of persons eligible to be members of the PDOU. I then have to be satisfied that more than half this number support its registration.”

[16] I agree that this statement accurately describes the task I must apply.

[17] The eligibility rule of iCCC is contained in Rule 5.1 of its rules filed with its application. That rule is as follows:

“MEMBERSHIP

5.1 Eligibility

All persons who are employed as Cabin Crew in the industry on airline services operated or wet-leased by the Virgin Australia Airlines Group of Companies or any successor, transmittee or assignee (whether immediate or not) of the whole or a part of the business of any company and/or subsidiary related body corporate or associated entity [as defined in the Corporations Act 2001 (Cth)] will be eligible to become a member of the Association.”

[18] Ms Kylie McCullagh gave evidence in the proceedings before me. She is the Manager, Workplace Relations, for Virgin and is responsible for workplace issues concerning cabin crew employees. Her evidence is that as at 10 April 2013 Virgin employs 2,614 cabin crew employees, comprising 2,186 employed on domestic flights and 428 employed on international flights. She said that these numbers change from time to time and have changed since the original objection to the application for registration was lodged by Virgin.

[19] iCCC submits that as it no longer seeks to cover employees engaged on long haul operations, the total figure should exclude the 428 employees engaged in its International Division. It made no application to amend its eligibility rules. Counsel for the FAAA and for Virgin submit that the figure must be based on the number falling within the eligibility rule at the time of seeking registration and as employees in both Divisions are eligible, the total figure is 2,614. They also submit that the employees in the International Division may be rostered to work on a domestic flight at some point in the future and they would fall within the eligibility rule in any event if it were assumed to be amended in line with iCCC’s intention.

[20] iCCC also submits that the number of employees in the relevant class must be further reduced by 14%, being an estimate of the number of employees on parental leave or other leave at any one point in time, because employees on leave are difficult to contact. There is no basis for such a reduction and I reject that approach.

[21] In my view the total number of employees to be used for the calculation of majority support is the number employed at the time of hearing covered by the iCCC’s eligibility rule. On the evidence I find that the relevant figure is 2,614. It follows that iCCC must demonstrate that at least 1,308 Virgin Cabin crew support its registration.

[22] iCCC sought to demonstrate that a majority of cabin crew supported its registration by reference to evidence and documents regarding a range of communications. Those communications were membership forms, providing a proxy for the inaugural meeting, website support forum, Facebook, an EBA survey, SMS transmissions, appointments as bargaining representatives, supportive requests followed up by email and handwritten support on cards, notepaper or by petition. Mr Worthy gave evidence that the total of all communications was 915. These included approximately 500 cabin crew employees who “liked” iCCC on its Facebook page, some of whom also communicated in other ways.

[23] The objectors contested the validity of much of this material. They submitted that in order to qualify as an expression of support for registration the communication must clearly establish that fact. Any support that is not of the requisite kind should be disregarded. The objectors submitted that the approach of Vice President McIntyre in the Postal Delivery Officers Union case provides support for this approach. In that case His Honour considered evidence of employee support in a petition that contained wording that the signatories are “interested in the establishment of a new union run exclusively for PDOs”. His Honour said that it did not appear to him that being so interested means supporting the registration of such a union 2. The objectors submit that apart from the evidence of 41 people who have signed a petition stating that they support the application for registration as an organisation, all other communications are highly questionable and should be disregarded.

[24] On any view of this material iCCC has not demonstrated that the criterion in s.20(1)(g) has been met. I do not consider that the vast majority of communications are expressions of support of the requisite kind. Even if they were all accepted, they do not constitute a majority of the relevant class of employees. I accept generally the submissions of the objectors regarding these matters. For these reasons I announced at the hearing on 14 May that I was not satisfied that the criterion of majority support in s.20(1)(g) had been established. For that reason I dismissed the application.

[25] Virgin has made an application for payment of its costs in the matter. I will provide it with 7 days to make submissions in support of its application from the date of this decision. I will provide iCCC with a further 7 days to file written submissions in response.

VICE PRESIDENT WATSON

Appearances:

Ms C Summers, Ms A Barlow and Mr C Worthy for iCabin Crew Connect.

Mr J Nucifora for the Australian Municipal, Administrative, Clerical and Services Union.

Mr P Gardner, of counsel, for the Flight Attendants’ Association of Australia.

Mr M Gibian, of counsel, for the Transport Workers’ Union of Australia.

Mr T Saunders, of counsel, for Virgin Australia Pty Ltd.

Hearing details:

2013.

Melbourne.

May.

14.

 1   Print S3192

 2   At [293]

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