Regional Express Holdings Limited v Australian Federation of Air Pilots [2017] HCA 55

“The question for determination in this appeal is whether the fact that a person is eligible for membership of an industrial association in accordance with its eligibility rules is sufficient to make the industrial association "entitled to represent the industrial interests of" that person within the meaning of s 540(6)(b)(ii) of the Fair Work Act 2009 (Cth). For the reasons which follow, the question should be answered that, in the case of an industrial association which is registered as an organisation under the Fair Work (Registered Organisations) Act 2009 (Cth) ("the FWRO Act"), it is sufficient.”

“The Full Court based their decision on an historical survey of legislative development of the expression "entitled to represent the industrial interests of". As Jessup J observed, the expression owes its origins to the line of cases, culminating in R v Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia, which established the entitlement of a trade union to represent the industrial interests of employees eligible for membership of the union ("the Dunlop Rubber principle"). From there, it may be traced through provisions of the Conciliation and Arbitration Act 1904 (Cth), the Industrial Relations Act 1988 (Cth) and the Workplace Relations Act 1996 (Cth) to the current legislative framework of the Fair Work Act. Over the years, it has been legislatively deployed, and understood, as meaning that an industrial organisation is entitled to represent the industrial interests of employees who are eligible for membership of the organisation” at [16].

“An "industrial association" is defined by s 12 of the Fair Work Act as an association of employees or independent contractors, or both, or an association of employers, that is registered or recognised as such an association (however described) under a workplace law; an association of employees or independent contractors, or both, a purpose of which is the protection and promotion of their interests in matters concerning their employment or their interests as independent contractors; or an association of employers a principal purpose of which is the protection and promotion of their interests in matters concerning employment and/or independent contractors.

An "industrial law" is defined by s 12 of the Fair Work Act as the Act itself, the FWRO Act, a law of the Commonwealth that regulates the relationships between employers and employees, or a State or Territory industrial law. The FWRO Act enables an industrial association that meets the standards set out in that Act to register as an organisation under that Act ("registered organisation")” at [2]-[3].

“Subject to contrary indication, it is to be presumed that the expression "entitled to represent the industrial interests of" has the same meaning wherever it appears in the Fair Work Act; and, given that in each case where the expression appears it is directed to the capacity or standing of an industrial association to take some action or to intervene in relation to persons whose industrial interests the organisation represents, it logically presents as intended to have the same meaning wherever it so appears. Contrary to Rex's submissions, that is so notwithstanding that the expression sometimes appears in the Act in contexts that do not involve the exercise of judicial power or the assertion of accrued rights.”

“a trade union had the capacity "to formulate industrial claims in the interests of that group or class ascertainable by reference to the 'conditions of eligibility' prescribed by its rules" (emphasis added). It was no obstacle to the existence of an industrial dispute initiated by the trade union serving a log of claims on an employer that none of the employer's employees was a union member. It was sufficient if the employer's employees were eligible for membership of the union.”