Australian Federation of Air Pilots v Airwork Personnel Pty Ltd

[2023] FWC 2635

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Federation of Air Pilots

Airwork Personnel Pty Ltd

(B2023/1075)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 12 OCTOBER 2023

Proposed protected action ballot of employees of Airwork Personnel Pty Limited

This is an application by the Australian Federation of Air Pilots (AFAP or Union) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Airwork Personnel Pty Ltd (Airwork Personnel or Employer).

On 12 October 2023, the Commission was advised by the Employer that it did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Chris Aikens, Senior Industrial Officer, setting out the steps taken by the AFAP in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Airwork Personnel, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 2 November 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR767098.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with any related matters associated with the proposed agreement. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is 10 working days from the commencement date of the ballot as proposed in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federation of Air Pilots (AFAP) applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009, in relation to certain employees of Airwork Personnel Pty Ltd. The application was made to allow the employees to vote on proposed protected action, which could include industrial action. Airwork Personnel did not object to the application, and the matter was decided on the papers without a hearing. The Commission was satisfied that the union had genuinely tried to reach an agreement with the employer and that all requirements under section 443 of the Act had been met.

The key legal issues before the Deputy President were whether the union had genuinely attempted to reach an agreement with the employer and if all the requirements under section 443 of the Act had been met for a protected action ballot. The union's declaration, setting out the steps taken in bargaining with the employer, satisfied the Commission that the union had been genuinely attempting to reach an agreement, and that the notification time for the proposed agreement had been met.

The Deputy President concluded that the application met the criteria for a protected action ballot order. The order was made to allow the employees to vote on the proposed protected action, with the ballot to be conducted by TrueVote Pty Ltd, an approved agent. The Commission set the closing date for voting as 2 November 2023, which is 10 working days from the commencement of the ballot. The matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference in conjunction with the proposed agreement. Further orders and directions may be issued to ensure meaningful negotiations at the conference.

No specific orders are outlined in the decision provided, but it is likely that further orders will be issued to facilitate the conciliation conference and related negotiations. The primary order made was to allow the employees to vote on the proposed protected action, with specific details on the ballot process and timeframes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established