Transport Workers’ Union of Australia
[2012] FWA 3559
•1 JUNE 2012
Note: An appeal pursuant to s.604 (C2012/4276) was lodged against this decision.
[2012] FWA 3559 |
|
DECISION |
Fair Work Act 2009
s.236—Majority support determination
Transport Workers’ Union of Australia
(B2011/4015)
COMMISSIONER LEWIN | MELBOURNE, 1 JUNE 2012 |
Majority support determination - permission to be heard - valid application - bargaining representative entitled to represent industrial interests - union industry and eligibility rules - industry of employer- in connection with - substantial character test - employer operating in connection with two or more industries simultaneously - majority of employees want to bargain.
[1] The Transport Workers’ Union of Australia (“TWU”) has applied for a majority support determination under s.236 of the Fair Work Act 2009 (the Act).
[2] The determination is sought in relation to the employees of ISS Services Pty Ltd T/A ISS Facility Services (ISS) at the Adelaide Airport. ISS is a Danish facility services company that entered the Australian marketplace in 2002. ISS employs approximately 22,000 employees in Australia, in each State and Territory, across a range of industries to provide cleaning, business, security and catering services, amongst others, to companies with outsourcing needs. ISS Security Pty Ltd is a subsidiary of ISS and employs approximately 3,500 employees throughout Australia. ISS Security Pty Ltd has a contractual arrangement with Adelaide Airport Ltd to provide security services including, predominantly, what is referred to as aviation screening. There are 155 employees of ISS Security Pty Ltd working at Adelaide Airport. 1
[3] The provisions of the Act under which the application is made and which apply to the making of the determination sought are set out below:
“236 Majority support determinations
(1) A bargaining representative of an employee who will be covered by a proposed single-enterprise agreement may apply to FWA 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.
237 When FWA must make a majority support determination
Majority support determination
(1) FWA must make a majority support determination in relation to a proposed single-enterprise agreement if:
(a) an application for the determination has been made; and
(b) FWA is satisfied of the matters set out in subsection (2) in relation to the agreement.
Matters of which FWA must be satisfied before making a majority support determination
(2) FWA must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by FWA; and
(ii) who will be covered by the agreement;
want to bargain; and
(b) the employer, or employers, that will be covered by the agreement have not yet agreed to bargain, or initiated bargaining, for the agreement; and
(c) that the group of employees who will be covered by the agreement was fairly chosen; and
(d) it is reasonable in all the circumstances to make the determination.
(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.
(3A) If the agreement will not cover all of the employees of the employer or employers covered by the agreement, FWA must, in deciding for the purposes of paragraph (2)(c) whether the group of employees who will be covered was fairly chosen, take into account whether the group is geographically, operationally or organisationally distinct.
Operation of determination
(4) The determination comes into operation on the day on which it is made.”
[4] United Voice, a registered organisation of employees, sought to be and was heard in relation to the application. 2
[5] I heard evidence and conducted an inspection of the work. The following persons were called as witnesses by the TWU, ISS and United Voice:
David Amos General Manager South Australia, ISS (ISS)
Nick McCrae Security Guard, ISS (United Voice)
John Spreckley Industrial Co-ordinator, United Voice (United Voice)
Wayne Osborne Union Official, United Voice (United Voice)
Paul Luthaus Security Guard, ISS (United Voice)
Peter Zidov Security Officer, ISS (United Voice)
John McKinlay Security Guard, MSS Security (United Voice)
Giuseppe Della Pietra Aviation Screener, ISS (TWU)
Jim Siannis Airline Security Officer, ISS (TWU)
Matthew Spring Organiser, TWU (TWU)
John Miller Aviation Screener, ISS (TWU)
Frank Kesak Aviation Screener, ISS (TWU)
Kosta Giannakopoulos Aviation Screener, ISS (TWU).
[6] The TWU submits that it is entitled to represent the industrial interests of the employees in respect of whom the determination is sought. The TWU has proposed an enterprise agreement to ISS, as the bargaining agent for members of the TWU working for ISS at Adelaide Airport. ISS does not dispute that the TWU has proposed such an agreement or that ISS has not agreed to bargain for the Agreement. ISS has informed the TWU that they do not recognise the TWU’s right to be a bargaining agent for such an agreement. The TWU has provided information on which it relies to establish that a majority of the employees who would be covered by the proposed enterprise agreement want to bargain for the agreement and that all the requirements and conditions of s.237 otherwise have been met.
[7] United Voice submits that there is no valid application under s.236, as the TWU is not a bargaining representative of any of the employees who would be subject to the determination sought. United Voice submits that in order to be a bargaining representative for the purposes of s.236(1) the provisions of s.176(3) of the Act require that the TWU must be entitled to represent the industrial interests of the employees of ISS employed at Adelaide Airport. United Voice submits that to be entitled to represent the industrial interests of those persons the constitutional rules of the TWU concerning eligibility for membership of the organisation would have to apply to those persons. This, United Voice say, is not the case.
[8] The provisions of s.176 are set out below:
“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.
Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation
(2) If:
(a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and
(b) an employee organisation applied for the authorisation; and
(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;
the organisation is taken to be a bargaining representative of such an employee unless:
(d) the employee is a member of another employee organisation that also applied for the authorisation; or
(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or
(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).
Requirement relating to employee organisations
(3) Despite subsections (1) and (2), an employee organisation 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.
Employee may appoint himself or herself
(4) To avoid doubt, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.
Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).”
[9] The primary issue for decision in this matter is whether or not there is a valid application before the Tribunal. If the TWU is not entitled to represent the industrial interests of the persons employed by ISS at Adelaide Airport it is not a bargaining agent for the purposes of s.236(1), the application is invalid and must be dismissed.
[10] If the application is validly made then the Tribunal must be satisfied of the matters set out in s.237(2) in relation to the proposed enterprise agreement having regard to any relevant considerations.
[11] United Voice submits that, if the application is validly made, the Tribunal cannot be satisfied that a majority of the employees who are employed by ISS at Adelaide Airport who would be covered by any proposed enterprise agreement want to bargain. United Voice submits that the material relied upon by the TWU to satisfy the Tribunal that a majority of the relevant employees want to bargain is insufficient for the requisite satisfaction to arise in this respect.
[12] Neither United Voice or ISS make any submission that if a valid application has been made and a majority of employees who would be covered by the Agreement want to bargain, there is any other reason for which the Tribunal would not be satisfied that the requirements of s.237(2) have been met.
The TWU Rules
[13] The TWU will be a bargaining representative if the following rules of the organisation apply to the employees in respect of whom the determination is sought.
“3. Industry in Connection with which the Union is Registered
(1) The Industry in connection with which the Union is Registered is described in Annexure A.
PART 3 - MEMBERSHIP
4. Conditions of Eligibility for Membership
(1) The Union consists of those persons described in Annexure B.
...
ANNEXURE A - DESCRIPTION OF INDUSTRY IN CONNECTION WITH WHICH THE UNION IS REGISTERED
(a) In or in connexion with road or aerial transport, delivery of milk, sanitary carting, mechanical excavation of earthworks and mechanical or animal-power haulage or driving industries but not so as to include the industries of transport by water, transport by Railways (except the despatch to or from railways of goods and the necessary loading or unloading operations connected therewith and shunting operations by horse-power), tramways passenger transport, driving of stationary engines, driving of passenger lifts, and driving of agricultural machines and implements in use for agricultural pursuits.
AND the industry of chauffeurs, conductors, and attendants on or about motor vehicles and employees engaged in and about garages, motor stables, and other similar places in the repair and maintenance of motor vehicles or as attendants.
(b) (i) the production, sale and distribution of
(1) gas including refined and residue oil gas, and
(2) by-products of that industry and goods from the products of that industry, including coke, tar, pitch fuel, sulphate of ammonia and benzol;
(ii) In bottling, packing, delivering, installing and maintaining all or any types of gas, including liquified petroleum gas, propane and butane used for all purposes;
(iii) In the production, piping, reticulation, distribution and sale of all or any types or forms of natural gases.
ANNEXURE B - CONDITIONS OF ELIGIBILITY FOR MEMBERSHIP
(A) (1) The Union shall consist of an unlimited number of persons employed or seeking to be employed in or in connexion with the industry or industries, and/or occupation, and/or calling, and/or vocations, and/or industrial pursuits of:
(a) The transport of persons and/or passengers, and/or goods, wares, merchandise, or any material whatsoever, by or on vehicles or animals or by aircraft or by motor, steam, oil, electric or other mechanically-propelled contrivances; drivers, assistants and conductors of same, and stable work wheresoever performed, including the work of attendance on horses and other beasts of burden, whether in stables or otherwise; all yard and garage cleaning and other work in connexion with driving and transport, including, washing, greasing, oiling, cleaning, polishing, tyre-fitting and general attendance on horse or mechanically-propelled vehicles and mechanical contrivances, training and breaking-in of horses, loading and unloading on to and/or from any vehicle; shunting by horse-power, supervising and collecting moneys, or washing cans in connexion with the distribution of milk, working in pits, tarring and washing pans, ploughing in of night soil, digging trenches and burying soil in connexion with sanitary work, ploughing in conjunction with the construction and excavation of earthworks; and
(b) All driving; and
(c) Chauffeurs, Conductors, and Attendants on or about motor vehicles, and employees engaged in and about Garage, Motor Stables, and other similar places in the repair and maintenance of motor vehicles, or as attendants.
(A) (2) For the purposes of this rule a person shall be deemed to be employed in one or more of the specified industries, occupations, callings, vocations or industrial pursuits if:
(i) his usual occupation is that of an employee in one or more of the specified industries, occupations, callings, vocations or industrial pursuits; or
(ii) he is a person employed in one or more of the specified industries, or engaged in one or more of the specified industrial pursuits in the State of New South Wales, Queensland, South Australia or Western Australia who-
(a) in the case of a person so employed or engaged in New South Wales - is, or is able to become, a member of an industrial union of employees within the meaning of the Industrial Arbitration Act 1940 of that State or that Act as amended from time to time up to and including 30 April 1984;
(b) in the case of a person so employed or engaged in Queensland - is an employee for the purposes of the Industrial Conciliation and Arbitration Act 1961-1976 of that State or that Act as amended from time to time up to and including 31 December 1981;
(c) in the case of a person so employed or engaged in South Australia - is an employee for the purposes of the Industrial Conciliation and Arbitration Act 1972-1975 of that State or that Act as amended from time to time up to and including 31 December 1981;
(d) in the case of a person so employed or engaged in Western Australia - is an employee for the purposes of the Industrial Arbitration Act 1979 of that State or that Act as amended from time to time up to and including 31 December 1981.
(A) (3) Until amalgamation be effected with other organizations or associations of employees engaged in transport all persons engaged in the following classes of work shall not be eligible for membership in the organization, namely-
(i) Transport on water;
(ii) Transport on railways other than despatching of goods to railway goods sheds, depots, stations and other like places, taking delivery of goods from such places, handling of goods, such as loading and unloading into and from railway trucks, store yards, or wharves, and shunting operations by horse power;
(iii) Tramways passenger transport;
(iv) The driving of stationary engines;
(v) The driving of passenger lifts; and
(vi) The driving of agricultural machines and implements in use for agricultural pursuits.
(B) The Union shall also consist of such other persons as are elected officers of the Union and admitted as members thereof.
(C) The Union shall also consist of such members who have been granted honorary membership after being elected to parliamentary or local government positions or after twenty years good standing in the Union, provided that the persons referred in both categories are not then engaged in the industry.
(D) The Union shall also consist of such independent contractors who, if they were employees performing work of the kind which they usually perform as independent contractors, would be employees eligible for Membership of the Union.
(E) The Union shall also consist of such persons (other than employees) who:
(a) are, or are able to become, members of an industrial Union of employees within the meaning of the Industrial Arbitration Act, 1940, of New South Wales;
(b) are employees for the purposes of the Industrial Conciliation and Arbitration Act 1961 of Queensland;
(c) are the employees for the purposes of the Industrial Relations Act 1979 of Western Australia; or
(d) are employees for the purpose of the Industrial conciliation and Arbitration Act, 1972 of South Australia.
and who if they were employees would otherwise be eligible for membership of the Transport Workers Union of Australia.
(F) The Union shall also consist of an unlimited number of persons not eligible to be members of the Union under paragraphs (A)-(E) inclusive of Annexure B, wheresoever employed in the Gas Industry throughout the Commonwealth of Australia -
(i) In or in connection with the production, sale and distribution of-
(a) gas including refined and residue oil gas, and
(b) by-products of that industry and goods from the product of that industry including coke, tar, pitch fuel, sulphate of ammonia and benzol;
(ii) In bottling, packing, delivering, installing and maintaining all or any types of gas, including liquified petroleum gas, propane and butane used for all purposes;
(iii) In the production, piping, reticulation, distribution and sale of all or any types or forms of natural gases.”
[14] The TWU submitted a helpful exposition of the basis of the construction of the rules upon which it relies to satisfy the requirement of s.176(3), such that it is entitled to represent the industrial interests of the relevant employees and is consequently a bargaining representative able to make the application. An extract from the TWU’s written outline of submissions tendered on 4 April 2012 is set out below:
“... the question is whether the substantial character of the activities in which ISS is engaged at Adelaide Airport can be said to be in or in connection with the industry or industrial pursuit of the “transport of persons and/or passengers, and/or goods, wares, merchandise, or any material whatsoever...by aircraft”. Given the inclusion of the extending words “in connexion with”, it is not necessary that the activities of ISS characterise it as being itself within the transport industry; a connection between those activities and that industry is sufficient to bring it within the rule.
22. The evidence demonstrates the nature of the activities undertaken by ISS and the persons employed by it at Adelaide Airport is closely connected to and, indeed, an integral part of the aviation transport industry...”
The reference to the words “in connexion with” appears to be to the terms of Annexure A of the TWU rules to which Rule 3 refers.
[15] The TWU submits that in order to construe the TWU rules it is necessary to determine whether the work of the employees and the substantial character of the business in which ISS is engaged at Adelaide Airport is in or in connection with the industry or industrial pursuit of the “transport of persons and/ or passengers and/ or goods, wares, merchandise, or any material whatsoever... by aircraft.”
[16] The TWU submits that it is not necessary that the substantial character of the business of ISS more generally or more particularly ISS Security Pty Ltd is in the industry of passenger transportation by aircraft. Rather, the TWU submits, the question to be decided is whether the employees of ISS perform work in connection with that industry and ISS is carrying on a business or industrial pursuit at Adelaide Airport which has a substantial connection with that industry. The TWU submits that whether or not ISS is “in” other industries such as the security or facility services industry is not determinative of the entitlement of the TWU to represent the industrial interests of the relevant employees.
[17] The TWU did not directly address the terms of Annexure A of the TWU Rules which describe the industry in connection with which union is registered. It will have been observed that the substance of the extract from the submissions of the TWU above rests on the conditions of eligibility in Annexure B of the rules to which rule 4 refers. In my view, the proper construction of the union’s rules dealing with eligibility for membership and thus an entitlement to represent the industrial interests of the employees of ISS at Adelaide Airport must include consideration of the terms of Annexure A which describes the industry in connection with which the union is registered. The relevant terms of Annexure A are as follows:
“a) in or in connexion with road or aerial transportation...”
[18] In my view, it will be necessary to find that the business of ISS is in connexion with the industry of aerial transportation and that the employees of ISS are persons employed in or in connection with the transport of passengers by aircraft in order for the TWU to be entitled to represent the industrial interests of the employees at Adelaide Airport. Nothing turns on the particular spelling of the word “connexion” in Annexure A.
[19] It is convenient at this point to deal with whether or not ISS is “in” the aerial transportation industry. I think not. On everything before me I consider that the substantial character of ISS’s business is in the facility services industry generally, such services being provided to a plurality of industries. The facility here is the Adelaide Airport. The relevant service industry in which ISS is engaged at Adelaide Airport is the security services industry.
[20] The TWU submits that, even if this be so, the nature of the security services undertaken by ISS and the relevant employees at Adelaide Airport are so closely and substantially connected to the industry of passenger transportation by aircraft that the work of the employees and the business of ISS, at that facility, is in connection with that industry. In this respect, the TWU submits, the TWU’s rules operate so that the employees of ISS at Adelaide Airport are eligible for membership of the TWU. If this is so, it is submitted, the TWU is entitled to represent the industrial interests of those employees. Accordingly, the TWU is a bargaining agent for its members employed by ISS at Adelaide Airport with standing to make the application in this matter.
[21] Given my judgement that the industry of ISS is the facility services industry, relevantly the security services industry, the entitlement of the TWU to be a bargaining representative of employees of ISS employed at Adelaide Airport would have to arise from a connection which is of a “substantial character” between the industry of ISS and the industry or industrial pursuit of transporting passengers, and their baggage, by aircraft as carried on, at Adelaide Airport.
[22] It is therefore necessary to examine the work of the employees, the business or industrial pursuit of ISS at Adelaide Airport and the business of ISS generally in order to establish whether or not the connection as submitted by the TWU relevantly exists and is of sufficient substance to bring the work of the employees and the relevant business of ISS, within the industry and eligibility rule of the TWU.
[23] The general nature of the work of screening passengers travelling by aircraft who depart from major airports in Australia is notoriously well known. The screening of passengers at Adelaide Airport is so similar to that of other major airports servicing interstate and international passenger departures as to be considered close to identical. Passengers using air transportation would have experienced such screening activities. I consider the wider public knowledge of the activities themselves and the uncontentious evidence about the qualification and accreditation required for tasks performed, training received and technology deployed by ISS and its employees at Adelaide Airport, obviates any necessity for a forensic exposition of the details of the work of the relevant employees for the purposes of this decision. I will therefore simply exhibit a summary list of the relevant and requisite aspects of the qualification, accreditation and performance of tasks of work and responsibilities of the relevant employees:
● Registration as a security officer
● Completion of Certificate II in security services by a registered training authority
● Completion of training for certification as a qualified aviation screener in accordance with the Aviation Transport Security Act 2004 and the Aviation Transport Security Regulations
● Possession of an Aviation Security Identification Card
● Passive security duties, observing and reporting
● Operation of electronic detector wand
● Operation of x-ray machinery in connection with passengers’ baggage and personal carriage of items
● Identification of weapons, prohibited and/or dangerous objects
● Operation of explosive residue detection machines
● Frisk searching of passengers
● Control of ingress and egress of persons through secure areas of the airport.
[24] In addition to the work of aviation screening ISS employees are engaged on perimeter security operations away from the passenger terminal at gate entrances to the land comprising the Adelaide aerodrome.
[25] The Tribunal’s approach to the construction of the TWU’s rules is subject to guidance expressed in decisions of the Full Bench of the Australian Industrial Relations Commission in CFMEU v Dyno Nobel (“Dyno Nobel”) 3 and Harnischfeger of Australia Pty Ltd v CFMEU (“Harnischfeger”).4 It is worthy of note that the decisions in both cases concerned the construction of union rules in relation to a very different statutory context, namely the determination of whether or not an industrial dispute existed between a union and an employer. Here I am concerned with the construction of a union’s industry and eligibility rule for the purposes of determining whether or not a valid application for a majority support determination has been made. Notwithstanding the different statutory contexts I consider the guidance equally apt.
[26] It seems to me that what is referred to in those decisions as the discrimen of the TWU’s eligibility rule is the industry of ISS or any connection of a “substantial character” between the industry of ISS and another industry. This is a question of fact. The relevant principles applicable to the construction of union industry and eligibility rules provide that the substantial character of an employer’s business may be in or in connection with more than one industry. The Full Bench in Dyno Nobel set out what was referred to as a “Summary of Principle” which is relevant, as follows:
“Summary of Principle
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 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.” 5
(Original footnotes deleted)
No substantial displacement of this summary arose in Harnischfeger.
[27] In the conclusion of the Full bench decision of Harnischfeger the following is stated:
“the application of the ‘substantial character’ test allows that a business may operate substantially in or in connection with two or more industries simultaneously.” 6
It is also worthy of note that in their prior discussion of the proper construction of the words “or in connection with” the Full bench said:
“With respect, we do not consider that recent decisions dealing with the scope and meaning of r 2D have afforded sufficient weight to those words of expansion.” 7
The reference to r 2D is to the following contents of Rule 2D of the rules of the Construction, Forestry, Mining and Energy Union (“CFMEU”):
“[12] The issue for determination in the proceedings at first instance was whether employees of Harnischfeger were eligible to be members of, and represented by, the CFMEU under Rule 2D of the CFMEU’s rules. Rule 2D is in the following terms:
“Without limiting the generality of the foregoing and without being limited thereby the Union shall also consist of an unlimited number of employees engaged in or in connection with the coal and shale industries together with such other persons whether employees in the industries or not as have been appointed officers and admitted as members.”
[28] It is clear that the view of the Full Bench expressed above, concerning the attribution of “sufficient weight” refers to the words “in connection with” as they appear in the rules of the CFMEU.
[29] It follows that the relevant principles governing the determination of this application referred to in Dyno Nobel and Harnischfeger, derived from legal authority determined by the High Court of Australia and the Federal Court of Australia, establish that while ISS may be a person involved in the facility services industry and/ or security services industry the substantial character of its business or industrial pursuit may also be carried on in connection with another industry or industries. Whether or not this is so is a matter of fact for the Tribunal to determine on the evidence before it. For the purposes of that determination, the work of the employees and the business of ISS at Adelaide Airport and elsewhere must be considered as a whole. The principles provide that the business of ISS, however conducted by its various corporate legal personalities, may overlap or have a substantial character in connection with a plurality of industries.
[30] There would seem to be a clear connection between the business of ISS at Adelaide Airport and the aerial transportation industry, by reason of the location of the service provided and the interaction between the work of the employees and passenger transportation by aircraft from that facility. Of itself, however, this proximity might not be sufficient to satisfy the requirement that the substantial character of the business of ISS at Adelaide Airport and the work of the relevant employees is in connection with the industry of passenger transportation by aircraft or that ISS is carrying on a business in connection with aerial transportation. In order to reach an appropriate conclusion in relation to the connection between the business of ISS and the industry of the aerial transportation of passengers by aircraft it will be necessary to consider the intrinsic nature and purpose of the business of ISS at the airport.
[31] An example of similar proximity without substantial connection with the industry of aerial transportation comprised of the transportation of passengers by aircraft might be an employer operating a retail establishment selling clothing, jewellery, donuts or lottery tickets at the airport. In my view, in such circumstances the industry of the employer would lack a connection of a substantial character with the transportation of passengers, to whom among others such goods might be sold. In my view, the industry of such an employer would be the retail industry. The business of the employer would be offering goods for sale. Whether or not such goods were purchased by passengers departing the airport by aircraft would have no connection of substance to their aerial transportation and be merely incidental thereto. Likewise, the work of the employees employed by the employer would not have a necessary or substantial connection with the departure of passengers transported by aircraft. It is immaterial to the transport of a passenger by air that the passenger purchases a handbag or a box of chocolates from a shop assistant.
[32] In Dyno Nobel the majority made the following observation in relation to consideration of the substantial character of the industry of an employer when considering the subject of eligibility for membership under a union rule.
“The fact that some employees perform work that, viewed in isolation, may be characterised as being in a given industry, while certainly a relevant factor, will not necessarily be determinative of a “substantial character” of the business of the employer. An example may serve to illustrate the point. Suppose the sole business of an employer is the operation of a chemical plant and suppose the employer directly employs several security guards to monitor the gate and patrol the plant. Undoubtedly the work of the security guards is work that could be characterised as being work in the security industry. However, that fact would not thereby result in the business of the employer having a “substantial character” that placed it in the security industry as well as the chemical industry.”
By broad analogy the reverse order of relationship might lead to a similar conclusion where the security guards in question were employed by a security service provider. In that case the same logic without more, might lead to a conclusion that the security guards were not employed by an employer “in” the chemical industry. Although, here we are concerned not with whether ISS is “in” the industry of aerial transportation but rather whether or not it is conducting a business the substantial character of which is in connection with that industry.
[33] In this respect it is informative to consider what the circumstances would be if the service provided and the work performed by ISS employees at Adelaide Airport was undertaken by employees of Adelaide Airport. It would be difficult to imagine that the industry in which the business of Adelaide Airport was engaged would not be the industry of aerial transportation and the relevant employees not engaged in or in connection with that industry. It was not submitted by United Voice or ISS that Adelaide Airport Ltd was not in the industry of aerial transportation.
[34] In Harnischfeger, the approach to the construction of the words “in connection with” was dealt with partly as follows:
“The final general observation we wish to make relates to the words “or in connection with” in Rule 2D. As we have already noted, these are words of expansion and allow a finding of eligibility even if the employees in question are not “in” the relevant industry.”
[35] From among the extensive authority and principles expressed in the two Full Bench decisions cited as guidance to be applied to the facts of the matter I note the following:
● Mere spatial or contractual proximity or association between two or more industries will not, without more, comprise a connection of a substantial character.
● The words “in connection with” are words of extension to be read broadly rather than narrowly and applied according to their ordinary meaning, generally, rather than technically and semantically or according to some formal construction.
[36] Having given consideration to all of the relevant circumstances, the work of the employees, the business of ISS Security Pty Ltd, at Adelaide Airport, the nature of the business of ISS generally and the service provided to Adelaide Airport, I have reached the conclusion that the connection between the provision of security services, predominantly aviation screening services, to Adelaide Airport and the industry of aerial transportation and the transportation of passengers by aircraft is of a character sufficiently substantive that the employees of ISS Security Pty Ltd at Adelaide Airport are eligible to be members of the TWU.
[37] Of critical importance to my conclusion in this respect is what I consider to be the intrinsic nature and purpose of the service provided by ISS to Adelaide Airport, the regulatory necessity for the service provided for the purposes of transporting passengers by aircraft, the scope and scale of ISS’s business activities at Adelaide Airport, the number of employees deployed for the predominant purpose of ensuring that passengers and their baggage are able to board and depart from the airport by aircraft and, the duties of the great majority of the relevant employees.
[38] The regulatory requirement for the training and qualification of the relevant employees as aviation screeners which is directed at ensuring passengers travelling by aircraft do not pose a threat to aviation security and the necessity for employees to be specifically accredited to perform the work for this purpose is a matter of considerable importance, in my judgement. ISS must provide such services in a manner which ensures that passengers may depart Adelaide Airport in accordance with Commonwealth legislation, which prohibits the transportation of passengers by air without the provision of the aviation security services, which ISS provides under contract to Adelaide Airport. This connection is much more than incidental. On what is before me this service is properly characterised as the predominant purpose of the contractual relationship between ISS and Adelaide Airport Ltd. It seems to me the business of ISS at Adelaide Airport is essential for and vitally connected to the transport of passengers and their baggage by aircraft from the airport. Without the service provided by ISS passengers could not lawfully be carried by air transport departing from the airport. I find, therefore, that the substantial character of the business of ISS and the work of its employees at Adelaide Airport is in connection with the industry of aerial transportation and the transport of passengers and their baggage by aircraft.
[39] I now turn to consider whether I may be satisfied that a majority of the employees whose employment would be covered by the proposed enterprise agreement want to bargain. The TWU relied upon a statement by Matthew Spring, 8 a TWU organiser, to establish that in mid 2011 a majority of the relevant employees wanted to bargain for an enterprise agreement. The provisions of s.237(2) are relevant and are set out below:
“Matters of which FWA must be satisfied before making a majority support determination
(2) FWA must be satisfied that:
(a) a majority of the employees:
(i) who are employed by the employer or employers at a time determined by FWA; and
(ii) who will be covered by the agreement;
want to bargain...”
[40] Given the passage of time since the indication of employees wanting to bargain in the relevant material it is pertinent to have regard to the statutory provisions governing the way in which the tribunal may arrive at the requisite satisfaction that a majority of the relevant employees want to bargain. There is no statutory impediment to making the determination based on the material indicating a majority at mid 2011. In fact, it may perhaps be reasonably open to infer that at all material times, including the present, a majority is evident in the relevant sense. However, I have decided that before making a determination I will require a contemporaneous demonstration of the majority of employees wanting to bargain in a manner more currently certain than the material before me would allow. While mid 2011 and less certainly early 2012 could possibly be determined as the relevant times for the purpose of determining whether a majority of the relevant employees want to bargain, I consider it appropriate to determine the present as the time at which the relevant majority exists or otherwise is the better course. This is so, in my view, for two reasons. The first is immediate certainty; the second is to allow the employees currently employed to constitute the electorate for the purposes of establishing the majority in order for the determination to issue in that event.
[41] I will list the matter for mention to give consideration to an appropriate method by which to arrive at the requisite satisfaction that a majority of the employees want to bargain as per s.237(3). The terms of which are set out below:
“(3) For the purposes of paragraph (2)(a), FWA may work out whether a majority of employees want to bargain using any method FWA considers appropriate.”
[42] Subject to my satisfaction that a majority of the relevant employees want to bargain, I would make the necessary determination, as I am satisfied that the relevant group of employees is fairly chosen. That group is all of the employees of ISS employed at Adelaide Airport. I am also satisfied that it is reasonable, on what is before me, in all the relevant circumstances to make the determination.
[43] In this respect I note that neither ISS or United Voice sought to bring evidence or otherwise persuade me that should I find that if the application is validly made and a majority of the relevant employees want to bargain that the group of employees in respect of whom the determination is sought is not fairly chosen or that there exists any circumstance which would cause the making of the determination to be unreasonable. Moreover, independently of those submissions on what is before me there is no relevant consideration which would lead to any such conclusion.
Appearances:
M Gibian of counsel and M Doherty for the Transport Workers’ Union of Australia.
J Moore for ISS.
C Dowling of counsel and M Ats for United Voice.
Hearing details:
2012.
Adelaide:
February 22, 23.
April 3, 4.
Final written submissions:
29 May 2012.
1 Transcript PN2109.
2 Permission to be heard granted in PR520254.
3 PR956868.
4 PR963826.
5 PR956868, PN 51.
6 PR963826, PN 88.
7 Ibid, PN 70.
8 Exhibit TWU2
Printed by authority of the Commonwealth Government Printer
<Price code C, PR522833>
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