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Union found ineligible to represent the industrial interests of an employee

The Federal Magistrates Court has recently rejected a union’s claim on behalf of an employee, because the union failed to prove that it was entitled under its eligibility rules to represent the employee’s industrial interests.

Implications for employers

This case was decided under the Workplace Relations Act 1996 (Cth) (“WR Act”) in relation to the interpretation of an Australian Workplace Agreement (AWA). However, the issue of union eligibility to represent industrial interests of an employee will become increasingly important under the Fair Work Act 2009 (Cth) (“FW Act”), as it will be used to determine the circumstances in which a union official will have a right to enter a workplace to hold discussions with employees. This case indicates that unions must prove that they are eligible to represent the industrial interests of relevant employees, and that mere assertions will not be sufficient.

Background

An employee worked as an aircraft engineer for Glyndale Pty Ltd. Glyndale and the employee entered into a series of AWAs containing clauses dealing with recreational leave and public holidays. The employee claimed that Glyndale had breached these provisions.

The employee was a member of the Australian Licensed Aircraft Engineers Association (ALAEA). The ALAEA brought a claim in the Federal Magistrates Court alleging that Glyndale had breached the AWA provisions in respect of recreational leave and public holidays.

Decision

Under the WR Act, a union may only make an application relating to a breach of an AWA if:

  • the employee has made a written request to the union for the union to apply on his or her behalf;
  • a member of the union is employed by the employee’s employer; and
  • the union “is entitled, under its eligibility rules, to represent the industrial interests of the employee in relation to work carried on by the employee for the employer.”

The Court accepted that the employee had requested the ALAEA to represent him, and that the employee was a member of the ALAEA. However, there was no evidence that the ALAEA’s eligibility rules allowed it to represent the industrial interests of the employee in relation to his work for Glyndale.

The Court noted:

The rules of the ALAEA are not in evidence. No official of the ALAEA gave evidence. Mr Sanderson-Miller gave evidence that he was a member of the ALAEA, but not as to his eligibility to be so, either at all or by way of reference to the rules of the ALAEA.

The Court concluded that the ALAEA had failed to prove that it was entitled to bring the application, and dismissed the application on that ground.

Nevertheless, in case this conclusion was incorrect, the Court went on to consider the substantive issues in the proceeding. It agreed with the ALAEA’s interpretation of the recreational leave clause in the AWA and held that Glyndale had deducted too much leave from the employee’s leave balance. However, it did not agree with the ALAEA’s interpretation of the public holidays clause and found that Glyndale was not required to provide an additional day of leave for each public holiday.

Australian Licensed Aircraft Engineers Association v Glyndale Pty Ltd [2009] FMCA 188

Who does this affect?
All Australian employer

What do you need to do?
Ensure you are updated on recent developments

Author(s)

  • Annamarie Rooding - Senior Associate | Email
 

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