Australian Federation of Air Pilots v Eastern Australia Airlines Pty Limited T/A QantasLink Summary

[2023] FWC 2216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Federation of Air Pilots
v

Eastern Australia Airlines Pty Limited T/A QantasLink

(B2023/911)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 4 SEPTEMBER 2023

Proposed protected action ballot of employees of Eastern Australia Airlines Pty Limited

This is an application by the Australian Federation of Air Pilots (AFAP) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Eastern Australia Airlines Pty Limited T/A QantasLink (QantasLink or Employer).

On 4 September 2023, the Commission was advised that QantasLink, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Chris Aitken, AFAP 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 QantasLink, 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.

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.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 18 September 2023.[2] This also established the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR765784.

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] This is, in effect, ten (10) working days from the date effect of the Order as sought.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federation of Air Pilots (AFAP) applied to the Fair Work Commission for a protected action ballot order against Eastern Australia Airlines Pty Limited T/A QantasLink. This request was made under section 437 of the Fair Work Act 2009. The purpose of the ballot was to seek authorisation from the employees for protected industrial action, likely in the form of a strike, due to ongoing disputes in negotiations over a proposed enterprise agreement. The employer, QantasLink, did not object to the application, allowing the matter to be determined on the provided documentation without a hearing.

The primary legal issue before the Commission was whether the conditions stipulated in section 443(1) of the Fair Work Act had been met for the ballot to proceed. The AFAP needed to demonstrate that it had genuinely attempted to reach an agreement with the employer and that a notification period had elapsed. The Commission reviewed the declaration from the AFAP Industrial Officer, Mr Chris Aitken, which outlined the steps taken in the bargaining process and confirmed the union's genuine efforts to reach an agreement. The Commission found that all necessary conditions were satisfied and thus approved the ballot.

The Fair Work Commission granted the application, setting the closing date for voting on the proposed industrial action as 18 September 2023. The ballot was authorised to be conducted by TrueVote Pty Ltd, which had been approved as a ballot agent under the Fair Work Act. The Commission also noted that a compulsory conciliation conference would be held, with all bargaining representatives required to attend. This conference aimed to facilitate meaningful negotiations between the parties to hopefully avert the need for protected action. The decision underscored the Commission's commitment to ensuring that all procedural requirements were met and that efforts to resolve disputes through negotiation were prioritised.

The final orders included the authorisation of the protected action ballot and the scheduling of a compulsory conciliation conference. The Commission issued these orders to ensure that the dispute was addressed through formal negotiation processes, aiming to reach a resolution that would avoid the necessity of industrial action.

Australian Federation of Air Pilots v Eastern Australia Airlines Pty Limited T/A QantasLink

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established