Representing the interests of non-unionised workers

Posted on December 14th, 2017

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On 13 December 2017 the High Court delivered a decision in a case of Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA55.

The central issue in dispute was whether an industrial association (such as a union, or other representative body) was entitled to represent workers who were not members of the industrial organisation.

The short facts were that Regional Express (REX) had written to a number of its pilots to the effect that if they made claims for accommodation costs during layovers, they would not be given command roles.  The Australian Federation of Air Pilots (AFAP), a representative body for commercial pilots, commenced proceedings alleging REX’s letter contravened a number of workplace rights.  None of the individuals to whom REX had written, were actually members of AFAP.  REX applied to summarily dismiss the proceedings on the basis that AFAP was not “entitled to represent the industrial interests of” individuals who were not members of its organisation.

The summary dismissal application failed at first instance, and appeals by REX to both the Full Court of the Federal Court, and to the High Court were also unsuccessful.  In essence the case determines that a person who is eligible for membership of a representative organisation (whether they are actually a member or not) can be represented by that organisation.

The decision potentially has broad ramifications since, although many individual workers do not belong to unions or industrial organisations, they may well be eligible for membership.  Consequently, it may be legitimate for unions, or other organisations, to bring applications “in the interests of” employees, even though the employees are not members of the organisation; and potentially even if the employees are not themselves particularly interested in bringing the application.

Tony Cavanagh Director at Mullane & Lindsay Solicitors, NewcastleTony Cavanagh is a Director at Mullane & Lindsay Solicitors and practises extensively in Commercial dispute resolution and litigationand employment lawIf you require any assistance in these areas please contact Tony Cavanagh to arrange a consultation or contact our Newcastle or Sydney office. 

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