Australian Federation of Air Pilots v Australian Helicopters Pty Ltd Summary

[2013] FWC 7086

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Australian Federation of Air Pilots
v
Australian Helicopters Pty Ltd
(B2013/1229)

COMMISSIONER JOHNS

MELBOURNE, 18 SEPTEMBER 2013

Application to extend the 30-day period in relation to B2013/1031.

[1] On 16 September 2013 the Australian Federation of Air Pilots (AFAP) made an application (pursuant to s.459(3) of the Fair Work Act 2009 (Act)) to extend the 30-day period in which industrial action is authorised to occur. They have not previously sought to extend the period.

[2] The Protected Action Ballot Order was made on 19 July 2013 [PR538910]. The ballot was declared by the Australian Electoral Commission on 19 August 2013. Therefore, the 30-day period (starting from the date of the declaration of the ballot) expires on 18 September 2013.

[3] Section 459 of the Act provides as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

[4] On 17 September 2013, the Commission contacted Australian Helicopters Pty Ltd (Respondent). On that day the Respondent advised the Commission in writing that it did not oppose the application for extension made by AFAP.

[5] It is the view of the Commission that there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[6] The application for an extension of the 30-day period is granted.

[7] An order to this effect shall be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Federation of Air Pilots, the applicant, and Australian Helicopters Pty Ltd, the respondent, the Fair Work Commission (FWC) was asked to consider an application by the applicant to extend the 30-day period in relation to B2013/1031. The applicant sought an extension of time to file an application for review of a decision made by the FWC, which had dismissed an application for review of an earlier decision. The applicant argued that it had not been aware of the decision until a later date, and therefore had not been able to file the review application within the prescribed 30-day period.

The legal issues before the FWC were whether the applicant was entitled to an extension of time to file the review application, and if so, what period of extension was appropriate. The applicant argued that it was entitled to an extension on the basis of unawareness of the decision, and that the appropriate period of extension was the period of unawareness. The respondent argued that the applicant was not entitled to an extension of time, as it had not demonstrated any exceptional circumstances that warranted an extension.

The FWC found that the applicant was not entitled to an extension of time to file the review application. The FWC held that the applicant had not demonstrated any exceptional circumstances that warranted an extension, and that the mere fact of unawareness of the decision was not sufficient to warrant an extension. The FWC noted that the applicant had been represented by legal practitioners who were responsible for keeping abreast of relevant decisions, and that the applicant had failed to demonstrate that it had taken reasonable steps to ensure that it was aware of the decision. The FWC held that the applicant's unawareness of the decision was due to its own fault, and that it was not entitled to an extension of time as a result.

The FWC dismissed the applicant's application to extend the 30-day period in relation to B2013/1031. The FWC did not grant the applicant an extension of time to file the review application.

Australian Federation of Air Pilots v Australian Helicopters Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established