Australian Federation of Air Pilots v Eastern Australia Airlines Pty Limited

[2023] FWC 2824

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

Eastern Australia Airlines Pty Limited

(B2023/1160)

DEPUTY PRESIDENT HAMPTON

HOBART, 26 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/911

This matter concerns the declaration of the result of a protected action ballot (PR765784) held in matter B2023/911 and declared on 25 September 2023.

The Australian Federation of Air Pilots (AFAP) has 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 by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC 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 the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application made by the AFAP contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

The Respondent has not advised the Commission of any objection to this application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible AFAP members employed by Eastern Australia Airlines Pty Limited be extended by a further 30 days.

This order will operate on and from 26 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federation of Air Pilots (AFAP) filed an application with the Fair Work Commission to extend the 30-day period within which industrial action can be authorised by a protected action ballot, as declared in matter B2023/911 on 25 September 2023. This matter involves the interpretation and application of section 459(3) of the Fair Work Act 2009, which allows for the extension of the 30-day period if specific conditions are met. The application was made against Eastern Australia Airlines Pty Limited. The Commission was required to determine whether the conditions for extending the period were satisfied, particularly focusing on whether the 30-day period had not already been extended and whether the AFAP had made an appropriate application to the Commission.

The central legal issue before the Deputy President was whether the application met the statutory criteria for extending the 30-day period. Under section 459(3) of the Act, an extension is permissible if the applicant for the protected action ballot order applies to the Fair Work Commission and if the period has not been previously extended. The Deputy President considered whether the application met these criteria and whether the respondent had any objections. Since the Respondent did not raise any objections, the Deputy President concluded that the application was properly made and that the statutory conditions for an extension had been met. The Deputy President found that the application should be granted, leading to the extension of the 30-day period for the commencement of protected industrial action for eligible AFAP members employed by Eastern Australia Airlines Pty Limited.

The Deputy President, after considering the application and the absence of objections from the Respondent, found that the requirements of the Act were satisfied. The 30-day period was extended by a further 30 days, effective from 26 October 2023. This decision ensures that the AFAP members can continue their protected industrial action under the extended period as authorised by the ballot. The Deputy President’s decision was based on the statutory criteria being met and the lack of any objections from the Respondent, thereby allowing the application to proceed without further ado.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established