Fair Work suggests air traffic controllers can join the TWU

“Employees of Airservices Australia, whose work is concerned with the provision of air traffic management services, are eligible to be members of the TWU and are thus entitled to have their industrial interests represented by the TWU,” he said.

In an ongoing application before the Fair Work Commission, Civil Air applied for an order that employees of Airservices do not have the right to join the TWU, one of Australia’s biggest unions.

As part of that bid, the Commission had to first determine whether the TWU was entitled to represent the employees’ industrial interests.

“The [Airservices Australia] employees are ineligible for membership of the TWU,” the application read.

“The TWU is seeking to recruit as members the employees. The employees are eligible to join Civil Air. Approximately 87 per cent of the employees are members of Civil Air.”

Airservices Australia, which is entirely owned and operated by the federal government, “provides safe, secure, efficient, and environmentally-sustainable services to the aviation industry”, including to the Department of Defence.

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Arguing that air traffic controllers fail to meet the TWU’s criteria for eligibility, Civil Air said that the air transport and navigation industry is an entirely different field from aviation and should thus have separate union representation.

“Civil Air submits that the TWU does not have the right to represent the industrial interests of the relevant employees, either on an occupational or an industry basis,” Justice Hatcher wrote.

“Air traffic controllers do not appear in any of the specific occupational roles contained in the eligibility rules.”

The TWU contended that its eligibility applies to anyone working in a role connected to the transport industry, including aviation.

“The TWU’s primary submission is that Airservices Australia is ‘in’ the air transport industry in that it provides a specialised and expert service at airports to ensure the safe navigation of aircraft into, out of and around airports,” Justice Hatcher said.

In his preliminary ruling, Justice Hatcher said the air transport industry is “overwhelmingly the major subset” of the aviation industry, as commercial passenger and freight aircraft “make up the major proportion of civilian aircraft movements in Australia”.

“Indeed, the air transport industry described in the TWU eligibility rule is perhaps wider than suggested by Civil Air since it encompasses not just commercial passengers and cargo but also the transport by aircraft of ‘persons’ (as distinct from ‘passengers’) and ‘any material whatsoever’. This, on one view, may include for, example, police and rescue helicopters,” he wrote.

“Pictured as a Venn diagram, the circle for the air transport industry would be located entirely within, and would almost entirely fill, the circle for the aviation industry. That being the case, it is not possible for Airservices Australia to be ‘in’ the aviation industry without also being ‘in’ the air transport industry.”

A hearing on the next steps is scheduled for 17 March.