Australian Federation of Air Pilots v Auriga Aviation Pty Ltd T/A Auriga Aviation
[2023] FWC 3280
•11 DECEMBER 2023
| [2023] FWC 3280 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Federation of Air Pilots
v
Auriga Aviation Pty Ltd T/A Auriga Aviation
(B2023/1345)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 11 DECEMBER 2023 |
Proposed protected action ballot of employees of Auriga Aviation Pty Ltd
This is an application by the Australian Federation of Air Pilots (AFAP or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Auriga Aviation Pty Ltd T/A Auriga Aviation (Auriga or Employer).
On 11 December 2023, the Commission was advised that Auriga, in effect, did not object to the Application. However, the Employer raised some additional matters for consideration in the proposed order including the inclusion of the standard 3 working day notice period of industrial action, the sharing of the cost of the ballot agent, and a 6-week ballot period but did not request a hearing to determine them. Chambers advised the parties that the response was acknowledged, noted the operation of s. 465 and s.414(2)(b) of the Act, and that I would consider the matters in my determination of the application.
In the circumstances, I have decided to determine the matter on the papers without holding a hearing. In so doing, I have had regard to the material and positions advanced by both parties.
On the basis of the material before me, including the declaration of Mr David Stephens, AFAP 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 Auriga, 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.
In relation to the notice of industrial action, the 3 working days period of notice of industrial action is already provided by s.414(2)(a) of the Act. Section 414(2)(b) does permit an extended period in exceptional circumstances, which would need to be included in the Order if granted, however this has not been sought in this matter. As a result, the 3 working day “default” period applies and there is no legal or practical utility or necessity for it to be included in the Order. The AFAP, which would be giving the notice, has already confirmed that it is aware of the notice requirements.
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[1] and consequently is authorised to conduct the ballot. In relation to the suggestion that the parties share the cost of the ballot agent, I observe that the AFAP indicated that it was not opposed to the notion. Section 465 of the Act provides that the applicant for a ballot is responsible for the costs of a (non-Australian Electoral Commission) ballot agent as is the case here. As a result, I have made no order about this, and any arrangement remains a matter for the parties themselves.
For the purposes of s.443(3)(c) of the Act, and following consultation with Parties, the Commission has determined that the date by which voting is to close is 22 December 2023. This also established the ballot period for the purpose of s.448A(2) of the Act. In establishing this period, I have applied the principles set out by the Full Bench in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nilsen (NSW) Pty Ltd.[2] Section 443(3A) of the Act requires the Commission to establish a ballot period that enables the ballot to be conducted as expeditiously as practicable. Without being definitive, I have had regard to the known circumstances of the parties, the capacity for the ballot agent to conduct a ballot in the period specified and the implications of the requirement to order attendance of all bargaining representatives at, and to conduct, the s.448A compulsory conciliation conference during the ballot period. The Employer’s proposal to have the period set at 6 weeks would not in my view enable the ballot to be conducted as expeditiously as practicable.
The sequence of Clauses in the proposed order were rearranged to reflect the Commission’s normal drafting practice.
An order has been separately issued in PR769160.
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 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] TrueVote Pty Ltd [2023] FWC 1446.
[2] [2023] FWCFB 134.
Printed by authority of the Commonwealth Government Printer
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