Transport Workers' Union of Australia v Trident Services Australia Pty Ltd
[2023] FWC 1582
•6 JULY 2023
| [2023] FWC 1582 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.236—Majority support determination
Transport Workers’ Union of Australia
v
Trident Services Australia Pty Ltd
(B2023/388)
| DEPUTY PRESIDENT LAKE | BRISBANE, 6 JULY 2023 |
Application for majority support determination – union eligibility rules – in connection with – industry and occupational rule – union eligible as bargaining representative
Background
On 28 April 2023, the Transport Workers’ Union (TWU) made an application to the Fair Work Commission seeking a majority support determination under s.236 of the Fair Work Act 2009 (Cth). The TWU sought to commence bargaining of Security Officers and Aviation Protection Officers (APOs) employed by Trident Services Australia Pty Ltd (Trident Services) who work at Sunshine Coast Airport
Section 236 of the Act provides that a bargaining representative can apply for a majority support determination.
“(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.”
Trident Services objected to the majority support determination on 3 May 2023 stating that the TWU are unable to represent the industrial interests of their employees, and therefore not an eligible bargaining representative.
The three objections raised by Trident Services were as follows:
Trident Services are engaged in the security and cleaning industries and their employees perform security duties or cleaning duties.
Trident Services are not associated with the road or aerial transport industries.
Trident Services employees’ do not perform any of the duties mentioned in the TWU’s union rules.
I listed the matter for hearing on 22 June 2023 to determine the above objections and issued directions for both parties to file materials.
On 16 June 2023, the TWU amended their application for a majority support determination to cover only the Aviation Protection Officers employed by Trident Services Security Pty Ltd (Trident Security) that perform work at the Sunshine Coast Airport located at Friendship Avenue, Marcoola.
Correction/Amendment of Application
The TWU had made an application to amend their Form F30 to cover the APOs only rather than the Security Officers and the APOs under s586 of the Act.
Section 586 of the Act provides:
“The FWC may:
(a)allow a correction or amendment of any application, or other document relating to a matter before the FWC, on any terms that it considers appropriate; or
(b) waive an irregularity in the form or manner in which an application is made to the FWC”
I have exercised my discretion to allow the amendment of this Application on the basis that there was no objection raised at the Hearing and the amendment provided particularisation of the coverage of the proposed agreement.
Construction of union eligibility rules
Rule 4 of the TWU’s Rules provides that the TWU is to consist of those persons detailed in Annexure B of the TWU Rules.
Clause (A)(1) of Annexure B provides, relevantly, that:
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… (emphasis added)
The construction of union eligibility rules has been summarised by Commissioner McKinnon in Re “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2021] FWC 1374. I have made following additions to these rules which further explain the usage of ‘in connexion with’ which has been adapted with consideration by the Full Bench in Transport Workers’ Union of Australia (179V) v Cleanaway Operations Pty Ltd [2023] FWCFB at [15] – [20].
Union eligibility rules will be construed objectively.[1] This question is determined by a question of fact.
The nature of union eligibility rules means that they should be construed liberally rather than narrowly or technically.[2]
Regard may be had to common understandings among people concerned with relevant industries, and particularly with industrial matters of the ordinary application of the words used, as well as to the previous use of the words in the relevant organisation’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries.[3]
If there is ambiguity about the meaning of words in eligibility rules, assistance may be sought in the terms of the industry rule (although the scope of the eligibility rule is not restricted by the scope of the industry rule).[4]
Words in an eligibility rule should not be read in isolation such as to give the rule a wide and indefinite scope of operation that is unlikely to have been intended, even if it is essential to the operations of the business.[5]
Terms used in union eligibility rules should not be interpreted statically in accordance with the meaning they bore at the time they were first introduced into the rules. Although such terms will have a fixed connotation, they bear a changing denotation. They may be interpreted in accordance with their appropriate current meaning, taking into account changing technologies and methods of work. This may mean that eligibility rules may cover industries or callings not known when the rules were originally drafted.[6]
‘In or in connection with’
There are further considerations that are required when the union rules express ‘in connection with’ in the interpretation of union eligibility rules.
The words “in or in connection with” are words of expansion.[7] These are words which connote a relationship between the work of the employee and the industry or calling in connection.[8]
Where a union eligibility rule refers to an industry (‘conventional industry rule’), the relevant industry is that of the employer. Where a union eligibility rule refers to an occupation (‘occupational rule’) it refers to the work activities that are carried on or industrial occupation of employees.[9] A decision of whether a particular description fits an industry or calling involves matters of degree, and the answer may depend on the ‘substantial character’ of the activities carried on.[10]
Whether or not the trade or business of an employer is in or in connection with a particular industry is a question of fact.[11] The matter is to be determined by the ‘substantial character’ of trade or business of the employer and all of its employees. This requires a consideration of the business of the employer as a whole but is not the only factor to be considered.[12]
10.The substantial character of a business may be ‘in or in connection with’ more than one industry. In such circumstances it is not necessary to decide which is predominant. Nor is it necessary for each group of activities that have a “substantial character” to operate as distinct businesses or enterprises within the employer’s overall operations.[13]
11.Indicia of connection include operational integration or functional interrelationship, physical proximity, identity of employer, establishment or enterprise and unity of control and management.[14]
The above factors are considerations that will be used to determine whether the TWU is an eligible bargaining representative of the APOs employed by Trident Security at Sunshine Coast Airport.
Do the APOs fall under the TWU’s eligibility rules?
The Respondent raised that security services, while essential, are not within the substantial character of transport as raised in Construction Forestry Mining and Energy Union v Dyno Nobel (2005) AIRC 622 at [60]:
“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.”
There are factual differences with this matter and Dyno Nobel in that the TWU has an occupational rule. The TWU operates on a hybrid rule which incorporates the conventional industry rule and the occupational rule unlike the CFMEU which deals with the conventional industry rule only. This means that the TWU can have coverage of a specific occupation of employees in a company if they are ‘in connection’ with the transport industry. The TWU had also amended their application to cover only Trident Security in establishing the connection in assessing the substantial character of their business.
It is correct that Trident Security are mainly in the security services industry. However, a substantial character of the business or occupation is not precluded to the dominant industry, or one industry. When assessing the APOs role, the substantial character of this role is also in connection with the aviation industry.
The APOs are specifically trained to play a role within the aviation industry. There is a functional interrelationship between the security services which the APOs provide and transportation.
The duties of the APOs are prescribed by law per Aviation Transport Security Act 2004 (Cth) and the Aviation Transport Security Regulations 2005 (Cth). The APOs are required because Sunshine Coast Airport (and airports around Australia) require a transport security program.
It is also indicated through Mr Stephen Goodwin’s statement where he states that flights cannot occur without the security screening of all goods or people. Mr Goodwin states that the APOs conduct security screenings of “all persons passing through the screening point at Sunshine Coast Airport including their cabin baggage and personal items; All checked and oversized baggage prior to being loaded by airline ground crew onto a luggage transport vehicle All goods sold by airside retailers and food service operators that pass-through screening point and any other object passing from landside to airside via the screening point.” It is not merely undertaking security work where a business wishes to protect their assets, but undertaking security work that is necessary within the transportation industry as no flights can be undertaken without this role.
Other indications of connection are that the APOs are located at Sunshine Coast Airport along with its key operational integration of the APOs in that there is only one security screening point for passengers, workers, flight crew, and ‘meeters and greeters’ of the travelling public before they are granted access to any form of aviation transport at this airport.
Furthermore, the APOs fall under the TWU eligibility rules when taking to account the common understandings among people concerned with the relevant industry, in this case the aviation industry. Airport security as part of aviation travel is commonly understood. The eligibility rules do not provide an indefinite scope. It does not cover every security officer at the Airport, but the ones that are essential for transportation of people or goods.
The Statement of Ms Lorraine Biviano establishes this common practice through the several enterprise agreements have been passed by the Commission with the TWU as a bargaining representative.
ISS Perth Aviation Security Agreement 2019 – 2022 (AE606611)
SNP Aviation Security and Transport Workers Adelaide Airport Enterprise Agreement 2019 (AE506068)
MSS Security Victorian Aviation Security Enterprise Agreement 2021 (AE518973)
SNP Aviation Security (Sydney Airport) Agreement 2022 (AE517837)
MSS Security QLD Aviation Security Employees Enterprise Agreement 2020-2023 (AE5180617)
ISS Queensland Aviation Security Agreement 2022 (AE606611)
Commissioner Lewin had dealt with the above issue regarding the interpretation of the TWU’s eligibility rules in ReTransport Workers Union[2012] FWA 3559. Commissioner Lewin provided a helpful interpretation of security officers in aviation. However, caution should be taken in reliance of this decision beyond security officers that do not specifically deal with aviation. The Commissioner provides a summary in [36] – [37]:
“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 character sufficiently substantive that the employees of ISS Security Pty Ltd at Adelaide Airport are eligible to be members of TWU members.
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 ”
The findings of this case are consistent with the analysis undertaken in consideration of the construction of union eligibility rules I have set above. As a result, I am satisfied that the APOs employed by Trident Security are eligible to be covered by the Transport Workers’ Union rules and are eligible bargaining representatives.
Conclusion
The Respondent is to provide a list of Aviation Protection Officers covered by Trident Security Services Pty Ltd hired to work in the Sunshine Coast Airport within seven (7) days from the decision being issued and a majority support determination will be issued once it is confirmed that there is majority support. I Order accordingly.
DEPUTY PRESIDENT
Appearances:
P. Boncardo as counsel on behalf of the Applicant
A.K Herbert as counsel on behalf of the Respondent
Hearing details:
Brisbane
Hearing via MS Teams
22 June 2023
[1] R v Williams; Ex parte Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 153 CLR 402 at 408 (Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ).
[2] R v Cohen; ex parte Motor Accidents Insurance Board (1979) 141 CLR 577 at 587 (Mason J).
[3] R v Isaacs; Ex parte Transport Workers Union (1985) 159 CLR 323 at 331 (Gibbs CJ); R v Williams at 408; Australian Workers’ Union v Baida Farms Pty Ltd [2021] FWCFB 6029 at [41].
[4] R v Gough; Ex parte Municipal Officers’ Association (1975) 133 CLR 59 at 69.
[5] Ibid; Ex parte v Municipal Officers’ Association; Construction, Forestry, Mining and Energy Union v CSBP (2012) IR 206 at [52] – [53]; Australian Workers’ Union v Baida Farms Pty Ltd [2021] FWCFB 6029 (Hatcher VP, Easton DP and Platt C) at [42]; Re Federator Liquor and Allied Industries Employees’ Union of Australia; Ex parte Australian Workers’ Union (‘Poon Bros Case’)
[6] R v Isaacs; Ex parte Transport Workers Union (1985) 159 CLR 323 at 331 (Gibbs CJ).
[7] Harnishfeger of Australia Pty Ltd v CFMEU (2005) 152 IR 243 at 68.
[8] Transport Workers Union v Cleanaway [2023] FWCFB 11 at [19]-[20].
[9] Ibid.
[10] Ibid citing R v Isaacs; Ex parte Transport Workers Union (1985) 159 CLR 323 at 331 (Gibbs CJ).
[11] Construction, Forestry, Mining and Energy Union v Dyno Nobel Asia Pacific Ltd [2005] AIRC 622.
[12] Ibid; Appeal by Transport Workers' Union of Australia-New South Wales Branch (179V-NSW) & Transport Workers Union of Australia [2011] FWAFB 8207 at [11] – [13].
[13] Harnischfeger of Australia Pty Ltd v CFMEU [2005] 152 IR 243 at [60].
[14] Transport Workers Union v Cleanaway [2023] FWCFB 11 at [20].
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