Australian Federation of Air Pilots v Alliance Airlines Pty Limited, Bravo Airlines Pty Limited

[2024] FWC 3202

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Federation of Air Pilots
v

Alliance Airlines Pty Limited, Bravo Airlines Pty Limited

(B2024/1488)

COMMISSIONER PLATT

ADELAIDE, 20 NOVEMBER 2024

Proposed protected action ballot of employees of Alliance Airlines Pty Limited & Bravo Airlines Pty Limited

The Australian Federation of Air Pilots (AFAP or Applicant) has made an application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Alliance Airlines Pty Limited & Bravo Airlines Pty Limited (the Employers).

I note that the Transport Workers’ Union of Australia (TWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 19 November 2024, the Commission was advised that the Respondent objected to question 7 of the draft order. The matter was subsequently scheduled for Conference at 4.30pm (SA) on 19 November 2024. The Respondent did not attend and the matter was adjourned to 20 November 2024 for Conference and Hearing.

At 9:00am (SA) on 20 November 2024 I conciliated the matter. Mr Mattner represented the Applicant, Ms Hignett represented the Respondent and Ms Biviano represented the TWU. During conciliation, the Respondent advised it withdrew its objection. Both parties advised that they did not object to a Consent Order being made in the terms proposed.

On the basis of the material before me, including the declaration of James Mattner, Organiser, setting out the steps taken by the TWU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, 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 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 4 December 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR781444.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives 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.

COMMISSIONER

[1] B2024/1487.

[2] This is, in effect, 14 calendar days from the making of the Order and was the date sought 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 concerning employees of Alliance Airlines Pty Limited and Bravo Airlines Pty Limited. The Transport Workers' Union of Australia (TWU) had also applied for a similar order, but this was not directly contested in the proceedings. The application was brought under section 437 of the Fair Work Act 2009, which pertains to the authorisation of industrial action ballots.

The key legal issues before the Commission were whether the notification time for the proposed enterprise agreement was met and whether all procedural requirements under section 443 of the Fair Work Act had been satisfied. Additionally, the Commission needed to ensure that the proposed ballot agent, TrueVote Pty Ltd, was approved and authorised to conduct the ballot. The TWU's genuine efforts to reach an agreement with the employers and the withdrawal of the employers' objections also played a role in the decision-making process.

The Commissioner, Platt, determined that the notification time had been met and that all requirements under section 443 of the Fair Work Act were satisfied based on the evidence provided. The employer's withdrawal of their objection and the agreement between the parties to proceed with a Consent Order further supported the decision. TrueVote Pty Ltd was approved as a ballot agent under section 468A of the Act, thus authorised to conduct the ballot. The closing date for voting was set at 4 December 2024. The matter will be assigned to another Commission member to conduct a compulsory conciliation conference to facilitate further negotiations.

The Commission issued an order granting the application and scheduled the ballot to be conducted by TrueVote Pty Ltd, closing on 4 December 2024. A separate order was also issued in relation to the TWU's application. The matter will be reassigned to another member for compulsory conciliation, ensuring the parties are ready for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established