FEDERAL COURT OF AUSTRALIA AMWU v Australian Licensed Aircraft Engineers Association [2012] FCA 1074 Citation: AMWU v Australian Licensed Aircraft Engineers Association [2012] FCA 1074 Parties: "AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION" KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION (AMWU), AUSTRALIAN WORKERS' UNION and COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA v AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION File number: NSD 1425 of 2012 Judge: BUCHANAN J Date of judgment: 28 September 2012 Catchwords: INDUSTRIAL LAW – union membership – eligibility rule – application for interlocutory injunction Legislation: Fair Work Act 2009 (Cth) Fair Work (Registered Organisations) Act 2009 (Cth) Date of hearing: 28 September 2012 Place: Sydney Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 26 Counsel for the Applicants: Ms C Howell Solicitor for the Applicants: Holding Redlich Counsel for the Respondent: Mr J Nolan Solicitor for the Respondent: Paul Murphy and Associates Lawyers IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1425 of 2012 BETWEEN: "AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION" KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION (AMWU) First Applicant AUSTRALIAN WORKERS' UNION Second Applicant COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Third Applicant AND: AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION Respondent JUDGE: BUCHANAN J DATE OF ORDER: 28 SEPTEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Until further order of the Court ALAEA, its officers, employees and agents, take no steps, whether directly or indirectly, to encourage or procure any other person to: (a) enrol or recruit as a member of ALAEA; or (b) represent industrially, any person employed or engaged, or proposed to be employed or engaged as an Aircraft Maintenance Engineer (AME), whether holding a Category A licence under the Civil Aviation Safety Regulations or not, except in accordance with Rule 3.2 of the registered rules of the ALAEA. 2. Until further order of the Court the ALAEA, its officers, employees and agents take no steps, whether directly or indirectly, to solicit or otherwise encourage any person to resign from, or not renew their membership of, any of the applicants. 3. Until further order, the ALAEA its officers, employees and agents not accept or process, or purport to accept or process any application for membership of ALAEA of any person employed or engaged, or proposed to be employed or engaged as an Aircraft Maintenance Engineer (AME), whether holding a Category A licence under the Civil Aviation Safety Regulations or not, except an employee who falls within the constitutional coverage of Rule 3.2 of the registered rules of the ALAEA. 4. Costs are reserved. 5. The application be listed for final hearing on 11 – 14 March 2013. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY FAIR WORK DIVISION NSD 1425 of 2012 BETWEEN: "AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING AND KINDRED INDUSTRIES UNION" KNOWN AS THE AUSTRALIAN MANUFACTURING WORKERS' UNION (AMWU) First Applicant AUSTRALIAN WORKERS' UNION Second Applicant COMMUNICATIONS, ELECTRICAL, ELECTRONIC, ENERGY, INFORMATION, POSTAL, PLUMBING AND ALLIED SERVICES UNION OF AUSTRALIA Third Applicant AND: AUSTRALIAN LICENSED AIRCRAFT ENGINEERS ASSOCIATION Respondent JUDGE: BUCHANAN J DATE: 28 SEPTEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Earlier today I made interlocutory orders restraining the respondent from enrolling certain persons as members, and from attempting or purporting to represent the industrial interests of those persons. What follows are my reasons for making those orders. 2 The applicants and respondent are each organisations of employees having corporate status under the Fair Work (Registered Organisations) Act 2009 (Cth) ("the RO Act"). The right of such organisations to enrol persons as members is limited by the "eligibility rule" of the organisation. 3 In proceedings commenced on 20 September 2012 the applicants have claimed a declaration that the respondent does not have the right, under its rules, to enrol as members persons employed or engaged as Aircraft Maintenance Engineers ("AMEs"), whether holding a Category A licence under the Civil Aviation Safety Regulations or not, except persons who fall within the coverage of a specific rule of the respondent's rules with which I do not at present need to deal. The applicants have also sought a declaration that the respondent has made false and misleading statements in relation to "workplace rights" in contravention of s 345(1) of the Fair Work Act 2009 (Cth) ("the FW Act"). The applicants have sought consequential orders in aid of the declarations which they have sought. Those orders include prohibitions on recruitment, enrolment or representation of AMEs and orders for publication of a disclaimer of any right to enrol AMEs as members. A monetary penalty pursuant to s 545 of the FW Act is also sought, such penalty to be paid to the applicants. 4 The applicants also seek interlocutory relief. That is the question with which this judgment deals. The interlocutory relief sought was, first, an order that the respondent be restrained from enrolling or recruiting AMEs as its members, or soliciting or encouraging any person to resign from or not renew their membership of any of the applicants. Secondly, orders were sought requiring the respondent to write to AMEs it has accepted as members advising them that they are not eligible to be members, and requiring the respondent to publish a disclaimer of any right to enrolment. These latter orders are inappropriate in the context of a claim for interlocutory relief, certainly in the present proceedings. They assume an outcome of the proceedings in respect of which the onus lies on the applicants. That onus has not been discharged. A case in which it might be discharged has not yet been heard. 5 The principal question which arises for consideration at present is whether the respondent should be restrained, pending final hearing and determination of the application, from further enrolling or recruiting AMEs as its members, from soliciting or encouraging anybody to resign their membership of any of the applicants and from attempting or purporting to represent the industrial interests of AMEs. Resolution of those questions, on an interlocutory basis, involves considerations which include the strength of the apparent case against the respondent on the face of the evidence in its present state, and where the balance of convenience lies pending the hearing and determination of the case for final relief. 6 There appears to me to be a clear prima facie case that on the proper construction of its present rules the respondent may not enrol AMEs generally as members. I will say something later about the other aspect of the case and the second declaration sought. The next question is where the balance of convenience lies. In the present case assessment of the balance of convenience seems to me to be a relatively straightforward matter. 7 Glenn Thompson is the National Assistant Secretary of the first applicant. He has provided affidavit evidence to the effect that AMEs who are eligible for membership of the applicants, perform a range of maintenance work on aircraft. AMEs cannot, at present, certify their own work or return an aircraft to service. That has historically been the responsibility of Licensed Aircraft Maintenance Engineers ("LAMEs"). LAMEs are eligible to be members of the respondent. They hold additional qualifications. They may certify their own work and supervise and certify the maintenance work of AMEs. They may release aircraft as "being ready for service". 8 The eligibility rule of the respondent, Rule 3.1, provides: 3.1 The Association shall consist of an unlimited number of persons employed or usually employed as engineers licensed to undertake, supervise and certify the maintenance of any one or more of the components, items of equipment, and/or systems (including associated equipment) in the airframes, engines, electrical systems, radio systems, and/or instrument systems on aircraft operating within the Commonwealth of Australia, its Territories and/or overseas from the Commonwealth of Australia. 3.2 And any persons employed by Forstaff Pty Ltd or its subsidiaries or successors who perform, administer, or work in connection with, the refurbishment, reconfiguration or heavy maintenance work on aircraft at Avalon Airport in the State of Victoria, excluding persons employed in the occupation, industry or calling of storeworker. 9 It is accepted that Rule 3.2 permits the recruitment of AMEs employed by Forstaff Pty Ltd at Avalon Airport in Victoria. Otherwise, there is at least considerable doubt that the respondent may enrol AMEs as members and, as will be seen, it has recently explicitly denied its legal capacity to do so. 10 On 12 March 2010, the respondent applied to Fair Work Australia ("FWA") to alter its rules by deleting Rule 3.2 and amending Rule 3.1 in the following fashion: 3.1 The Association shall consist of an unlimited number of persons employed or usually employed as engineers licensed in the aircraft or airlines industries to undertake, supervise and, or certify the maintenance of any one or more of the components, items of equipment, and/or systems (including associated equipment) in the airframes, engines, electrical systems, radio systems, and/or instrument systems on or provide technical support or training in connection with aircraft operating within the Commonwealth of Australia, its Territories and/or overseas from the Commonwealth of Australia. (Original emphasis.) 11 This proposed amendment is intended to make clear that the respondent could enrol AMEs as members. The applicants have objected to the proposed alteration to the Rules. The application has not yet been heard by FWA. Mr Thompson deposed that it is not likely to be heard until 2013. 12 The conflict between the applicants and the respondent appears at present to be focussed upon the position of AMEs employed by Qantas. In June 2011 the Civil Aviation Safety Authority introduced a new aviation engineer licensing system. It is expected that the new licensing regime will be introduced by Qantas in October 2012. From that time AMEs at Qantas will be eligible to hold a Category A licence. AMEs holding a Category A licence will be able to certify their own maintenance work. 13 In May 2012 meetings were held between the applicants and the respondent under the auspices of the Australian Council of Trade Unions. Those meetings concerned the significance of the licensing changes and their consequences for the rights of the respondent to recruit AMEs to be its members. The respondent at that time sought a commitment from the applicants that AMEs holding the new Category A licences would be covered by the respondent. The applicants refused to provide any such commitment. The discussions were inconclusive. 14 Meanwhile the applicants applied to FWA for an order under s 137A(1)(b) of the RO Act that the respondent not have the right to represent the industrial interests of AMEs. That application was made on 30 April 2012. On 29 August 2012 a Full Bench of FWA published a decision in which it declined to make the order sought. However the reason why the application was refused is important to appreciate. The Full Bench recorded in its decision at [3] and [23] that the respondent accepted before the Full Bench that its present eligibility rule does not permit it lawfully to enrol or represent the industrial interests of Qantas AMEs or Qantas AMEs holding a Category A licence. At [29]-[32] the Full Bench said: [29] To the extent the evidence is about the consequences, or probable consequences, of uncertainty over the ALAEA's constitutional coverage or representational rights, the ALAEA's concession in the proceedings before us that it does not have constitutional coverage of, or the right to represent under the RO Act or the FW Act the industrial interests of, Qantas AMEs or Qantas AMEs with a Category A license should be sufficient to overcome, and be able to be used to overcome, such uncertainty. We have come to this view despite the unwillingness of the ALAEA to give an undertaking on the issue. [30] As a result, we conclude the consequences of FWA not making the representation orders sought in this matter for Qantas, the relevant employees, the applicant unions or the ALAEA are likely to be minimal. This is a factor going against the making of the representation orders sought. [31] We are not persuaded we should make the representation orders sought by the AWU, the AMWU and the CEPU and supported by Qantas. [32] This is because we have concluded there are likely to be minimal consequences for Qantas, the relevant employees, the applicant unions and the ALAEA in FWA not making the representation orders sought in this matter. The ALAEA's concession, as recorded in this decision, that it does not have constitutional coverage of, or the right to represent under the RO Act or the FW Act the industrial interests of, Qantas AMEs or Qantas AMEs with a Category A license should be sufficient to overcome for Qantas, the relevant employees and the applicant unions, and be able to be used by them to overcome, any uncertainty about the ALAEA's lack of constitutional coverage or representational rights in respect of those employees. 15 A further reason for not making the order sought was so that such an order would not be able to be used in the application by the respondent to alter its eligibility rules which is pending before FWA. 16 The reference by the Full Bench to the concession made by the respondent reflects the effect of the following statements made to it, which are recorded in the transcript of the proceedings: MR NOLAN: … can I just say to your Honours and Commissioner that it will have been apparent - I hope, at least - from the submissions that we've lodged pursuant to the directions that a fundamental issue that appeared to be between the parties - namely, the right of my client organisation to industrially represent and cover this class of employees, these AMEs if I can refer to them as that - has been dealt with in the submissions, and we made it quite clear that under its present coverage the ALAEA could not seek to enrol and represent under the Act non-licensed engineers. … SENIOR DEPUTY PRESIDENT ACTON: Mr Nolan, you say that under your current eligibility rules you're not eligible to cover and therefore represent under the Act non-licensed engineers. MR NOLAN: That's right. SENIOR DEPUTY PRESIDENT ACTON: Does that include AMEs who would have a category A licence? MR NOLAN: That's right. SENIOR DEPUTY PRESIDENT ACTON: So you concede you couldn't cover those - - - MR NOLAN: That's right. SENIOR DEPUTY PRESIDENT ACTON: - - - people under your current rules. MR NOLAN: That's right, and the whole idea of the rules alteration application is to confront this matter fairly and squarely and have that issue resolved in a direct and straightforward way rather than via some kind of side wind in proceedings like this. SENIOR DEPUTY PRESIDENT ACTON: So pending the rules case and the determination of that rules case, would you be seeking to enrol category A AMEs? MR NOLAN: We couldn't enrol and hold out to people - the category A AMEs the right to be a member of the ALAEA, because we couldn't hold out to them our rights to represent them industrially. SENIOR DEPUTY PRESIDENT ACTON: Right. So the answer to that is, "No, we wouldn't be seeking to enrol." MR NOLAN: We wouldn't, but at the same time we've got the rules alteration application in. We would obviously seek expressions of interest from people or indications of support from people if they were inclined to join the ALAEA should the ALAEA's application be successful, and we wouldn't be prevented from doing that but we certainly would not be holding out to them - or making any representations that we have the right to represent them industrially under the Fair Work Act. SENIOR DEPUTY PRESIDENT ACTON: How can they be members of the organisation if you don't have eligibility? MR NOLAN: That's right. That's what I'm saying. SENIOR DEPUTY PRESIDENT ACTON: So they couldn't be members. MR NOLAN: No, but we could invite expressions of interest contingent upon the eligibility application succeeding. SENIOR DEPUTY PRESIDENT ACTON: Right. MR NOLAN: There'd be nothing to prevent us doing that, nor would there be anything to prevent any other union doing that if they were seeking to change their eligibility rule to test the water, as it were. SENIOR DEPUTY PRESIDENT ACTON: So you'd be proposing that, pending the rules determination, all you'd be doing is what in the workplace? MR NOLAN: We wouldn't be doing anything in the workplace except for letting people know that we were intending to change our - we were endeavouring to change our rules. We'd be entitled to do that. SENIOR DEPUTY PRESIDENT ACTON: Right. MR NOLAN: But we wouldn't be endeavouring to try to represent people because we couldn't do it, by definition. 17 I do not think it could be any clearer that the respondent explicitly disclaimed any entitlement to enrol Qantas AMEs, any intention to attempt to represent their industrial interests unless its rules were changed, and any right to represent their industrial interests at the present time. 18 Notwithstanding the decision of the Full Bench, the concession which is recorded therein and the evident fact that the concession was a significant matter informing the decision of the Full Bench not to make an order against the respondent, Mr Thompson's affidavit provides evidence that the respondent has commenced to encourage members of the applicants to become members of the respondent and to resign their membership with the applicants. Some examples follow. 19 The respondent wrote to Qantas on 31 August 2012 informing Qantas that it would vigorously represent its AME members. 20 The respondent published a notice to Qantas AMEs on 3 September 2012 saying, in part: The ALAEA has made a conscious decision to actively recruit AMEs and offer complete representation of AME interests – be they in the workplace, with the aviation regulator or in regard to good, sustainable careers. 21 The respondent published a further notice on 15 or 16 September 2012 saying that the respondent "is now actively recruiting AMEs working for Qantas". 22 Evidence has also been provided in affidavit form by Glenn Wilcox, an AME employed by Qantas at Sydney. Mr Wilcox provided confirmatory evidence of the recent actions of the respondent in attempting to recruit AMEs as members. 23 The evidence establishes a sufficiently clear case for the purpose of the present interlocutory application that the respondent has commenced to act, and intends to act, inconsistently with the position it accepted and asserted before the Full Bench of FWA and upon which the Full Bench relied in rejecting the application to formally deny it the right to represent AMEs at Qantas, pending the hearing and determination of the respondent's application before FWA to alter its rules. It may be possible for a further approach to be made to FWA in that respect but that possibility is not one which need delay the resolution of the present application. The applicants have commenced proceedings before this Court seeking a declaration that the respondent is not entitled to enrol AMEs as its members, whether they hold a Category A licence or not. That application will be heard and determined in the ordinary way. In the meantime I am satisfied that there is a serious case to be tried that the respondent does not have the present right to enrol AMEs as members, or represent their industrial interests, and that it is acting, and proposes to act, inconsistently with its Rules in so doing. The balance of convenience clearly favours maintenance of the position announced to the Full Bench of FWA in July. 24 It is not necessary for me to give separate attention at present to the strength of the applicants' case that the respondent has made false and misleading representations about "workplace rights" in contravention of s 345(1) of the FW Act, although there certainly appears to be a serious question to be tried in that respect. In my view the balance of convenience does not favour a requirement that the respondent formally and explicitly disavow the validity of enrolment of any AME it has purported to admit to membership, nor does it favour a requirement for "corrective advertising". Those are forms of relief which are more suitable for attention at a final hearing, when it will be possible to assess all the evidence. For the moment, an order preventing the respondent from attempting to represent the industrial interests of any AME (other than those covered by Rule 3.2), should suffice to deal with the position of those purportedly admitted as members. There is no bar to further interlocutory relief of a more directed kind if the circumstances require it. 25 For those reasons, earlier today I made orders substantially in the form of paragraphs 1 and 2 of the claim for interlocutory relief in the application filed on 20 September 2012. Costs will be reserved. 26 The application will be listed for final hearing on 11 – 14 March 2013. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan. Associate: Dated: 28 September 2012