The High Court has dismissed an appeal against a decision of the Full Federal Court on the standing of employee organisations to allege breaches of the Fair Work Act 2009 (Cth). Section 540(6)(b)(ii) provides that an industrial association can apply for an order relating to a breach if that association is ‘entitled to represent the industrial interests’ of the person affected by the breach. The appellant airline instructed its cadet pilots that if they insisted on their right to accommodation contained in the enterprise agreement they would not be given a position of command. The respondent association alleged that this breached various provisions of the Fair Work Act, and the appellant disputed the association’s status as representing the cadet pilots because none of those pilots were members. The FCAFC held that although the pilots were not in fact members, they were eligible for membership, and thus the respondent was ‘entitled to represent’ their industrial interests.

The High Court (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ) unanimously dismissed the appeal, holding that where a person is eligible for membership of an industrial organisation, that organisation’s entitlement ‘to represent the industrial interests of the person’ can be sufficiently shown by its registration under the Fair Work (Registered Organisations) Act 2009 (Cth). After reviewing the legislative provisions, facts and proceedings below (at [2]ff), the Court noted that because the phrase lacks a plain and ordinary meaning, the FCAFC took an ‘entirely conventional’ approach to construing the provision by looking to its context within the Act its legislative history (at [19]). Turning first to statutory context, the Court noted that the phrase appears in several places in the Act, including, significantly, in relation to permissions to hold discussions with ‘potential members’ (at [20]). The Court then observed that the phrase is presumed to have the same meaning wherever it appears in the Act (at [21]), and that while most uses relate to actions on behalf of persons who are members of the organisation (at [22]), the structure of s 540 runs against that reading (at [25]):

even within s 540 itself in the contrast between s 540(5), which is expressly conditioned on membership, and s 540(6), which is not, that an organisation’s entitlement to represent the industrial interests of a person may arise otherwise than from the person’s membership of the organisation. And to repeat, given the absence of any identified signification that “entitled to represent the industrial interests of” is used otherwise than consistently throughout the Fair Work Act, it is to be concluded that it has the same meaning where it appears in provisions like ss 484, 533 and 540(6), which are not conditioned on membership, as it does in provisions like ss 176(1) and 481, which are.

The Court then rejected several arguments by the appellant, holding that membership is not the only marker of entitlement to represent a person under the Act (at [26]), that requirements elsewhere in the Act that a person be a member and the organisation be entitled to represent the person’s industrial interest doe not suggest that entitlement means something besides representing eligible persons (at [27]), and that the Act excludes the possibility, suggested by the appellant, that entitlement should be read as limited to arising either by membership or some other specific authorisation or consent by the persons being represented (at [28]).

Moving next to historical context, the Court held that the FCAFC was correct in its reading of the meaning and significance of the Dunlop Rubber [1957] HCA 19 line of authority; namely, the principle that an organisation’s entitlement to represent workers rests on their eligibility for membership of that organisation, not on their actual membership (at [29]). After reviewing those cases (at [30]ff), the Court rejected the appellant’s submission that a later case threw doubt on or limited the Dunlop Rubber principle (see [34]–[36]). Turning to the current Act’s predecessor provisions, the Court emphasised that these reflected the Dunlop Rubber understanding of entitlement to represent (see [37]ff and especially [42]). The Fair Work Act, despite its new mechanisms for enterprise bargaining by representatives, also preserved the same Dunlop Rubber meaning of entitlement to represent (at [43]ff). While the Act also introduced different standing requirements for taking action against breaches of workplace agreements as opposed to civil penalty provisions, the latter consolidated a range of miscellaneous provisions on standing and, given the expression’s well-established meaning, clearly intended to use it in that established sense in this new setting (at [48]). The Court then rejected the appellant’s argument that the Dunlop Rubber reading ignored the possibility that not all organisations necessarily have eligibility rules, endorsing the FCAFC’s conclusion that this was not a sufficient reason to doubt that this idea of entitlement did apply to registered organisations, which are required to have eligibility rules (at [49]). While this does not mean s 540(6) is necessarily limited to registered organisations (at [50]), that question need not be resolvfed here, and it is clear that it does apply to registered organisations because of their eligibility rules (at [51]).