Australian Federation of Air Pilots v Babcock Mission Critical Services Australasia Pty Ltd Summary

[2022] FWC 1465

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Federation of Air Pilots
v

Babcock Mission Critical Services Australasia Pty Ltd

(B2022/539)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 JUNE 2022

Proposed protected action ballot of employees of Babcock Mission Critical Services Australasia Pty Ltd.

This is an application by the Australian Federation of Air Pilots (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Babcock Mission Critical Services Australasia Pty Ltd (the Respondent).

On 9 June 2022, my Associate was advised by the Respondent that it would be willing to consent to the Application being granted if the Applicant would be willing to consent to an amendment to the notice period required for the taking of industrial action from 3 working days to 7 working days (subject to the Commission being satisfied it is appropriate to extend the notice period). I determined a Mention should be conducted a Mention, during which I discussed this matter with the parties and others subsequently raised.

With the Mention having resolved the various matters raised by the parties, I have proceeded to determine the matter on the papers, it not being necessary to conduct a hearing.

On the basis of the material before me, including the declaration of Mr David Stephens of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd (TrueVote). I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint TrueVote as the protected action ballot agent.

An order has been separately issued in PR742524.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Australian Federation of Air Pilots v Babcock Mission Critical Services Australasia Pty Ltd involved an application by the Australian Federation of Air Pilots (Applicant) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Babcock Mission Critical Services Australasia Pty Ltd (Respondent). The application was made to the Fair Work Commission, which is the body responsible for resolving workplace disputes under the Fair Work Act. The dispute centred around the proposed industrial action ballot of the Respondent's employees, and the need for the Commission to facilitate the process by granting the necessary order.

The legal issues that the Fair Work Commission had to address included whether the Applicant had taken all reasonable steps to reach an agreement with the Respondent, whether the notice period for the industrial action was appropriate, and whether the proposed ballot agent was fit and proper to conduct the ballot. The Commission had to determine whether the Applicant had genuinely attempted to negotiate with the Respondent and if the proposed steps for industrial action met the requirements of the Act. Furthermore, the Commission had to decide on the suitability of the proposed ballot agent, TrueVote, to conduct the ballot and ensure the secrecy and security of the votes.

The Commission found that the Applicant had genuinely tried to reach an agreement with the Respondent and that the notice period for industrial action could be extended to seven working days, subject to the Commission's satisfaction. The Deputy President, Clancy, was satisfied that TrueVote was a fit and proper person to conduct the ballot, and that it was capable of ensuring the secrecy and security of the votes. Consequently, the Commission granted the application and appointed TrueVote as the protected action ballot agent. The Commission determined that a hearing was not necessary, as the matter could be resolved on the papers and after the Mention held with the parties.

In conclusion, the Fair Work Commission granted the application for a protected action ballot order and appointed TrueVote as the ballot agent. The Commission found that the Applicant had met the requirements of the Act, and that the proposed notice period and ballot agent were appropriate. This decision allows the industrial action ballot to proceed under the supervision of the Fair Work Commission and ensures the process is conducted fairly and efficiently.

Australian Federation of Air Pilots v Babcock Mission Critical Services Australasia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established