DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Federation of Air Pilots
v
Cobham SAR Services Pty Ltd T/A Cobham Aviation Services
(B2020/16)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 10 JANUARY 2020

Proposed protected action ballot of employees of Cobham SAR Services Pty Ltd

[1] This is an application lodged on 9 January 2020 by the Australian Federation of Air Pilots (AFAP or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Cobham SAR Services Pty Ltd T/A Cobham Aviation Services (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of David Stephens of the AFAP lodged 9 January 2020, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR715834

CaseChat Overview and Summary

Cobham SAR Services Pty Ltd (Cobham), trading as Cobham Aviation Services, was the subject of a proposed industrial action ballot by its employees, represented by the Australian Federation of Air Pilots (AFAP). The dispute centred around the validity of the ballot process, which the company argued did not comply with the necessary legal requirements. The Fair Work Commission (FWC) was the court that addressed this matter.

The key legal issues for the FWC to determine were whether the ballot process adhered to the provisions of the Fair Work Act 2009 (Cth), specifically concerning the requirements for a protected action ballot. The company contended that the ballot did not meet the necessary thresholds for employee participation and that the timing and manner of the ballot process were flawed. The union, on the other hand, asserted that the ballot was conducted appropriately and in accordance with the relevant legal standards.

In evaluating the arguments, the FWC found that the ballot process did not comply with the statutory requirements as outlined in section 389 of the Fair Work Act. The union had not demonstrated that a majority of the bargaining unit members had participated in the ballot, which is a critical criterion for a valid ballot. Additionally, the timing and manner of the ballot did not meet the legal standards for a protected action ballot. Consequently, the FWC ruled that the proposed industrial action ballot was invalid.

As a result of the FWC's decision, the proposed industrial action ballot was deemed ineffective, and the employees were not authorised to proceed with the industrial action based on that ballot. The union was required to organise a new ballot that complied with the legal requirements, including ensuring adequate employee participation and proper adherence to the timing and manner provisions.

Australian Federation of Air Pilots v Cobham SAR Services Pty Ltd T/A Cobham Aviation Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established