DECISION

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

Australian Federation of Air Pilots
v
Eastern Australia Airlines Pty Ltd T/A Qantaslink
(B2015/712)

COMMISSIONER CAMBRIDGE

SYDNEY, 9 JULY 2015

Proposed protected action ballot of employees of Eastern Australia Airlines Pty Limited T/A Qantaslink.

[1] On 5 July 2015, the Australian Federation of Air Pilots (AFAP), made an application for a protected action ballot order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the AFAP who are employees of Eastern Australia Airlines Pty Limited T/A Qantaslink (the employer) whose employment is to be regulated by a proposed agreement to replace the Eastern Australia Airlines Pty Limited Pilots Enterprise Agreement 2010.

[2] The application seeks a ballot of employees of the employer who are members of the AFAP who would be covered by a proposed enterprise agreement. The application was supplemented with an undated Statement of Simon Lutton (the Statement). In summary, the Statement provided information about events involving attempts made by the AFAP to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 7 July 2015, advising the parties had reached a consent position and the employer did not oppose the application for a protected action ballot Order. The application was listed for Hearing before the Commission in Sydney on 9 July 2015. However in the circumstances, there was no requirement for the Parties to attend and in the absence of any opposition, the matter has proceeded to be dealt with on the basis of the material filed.

[4] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[5] In this instance I am satisfied that the application has been made in accordance with section 437 of the Act. Further, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[6] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a protected action ballot Order. The Order shall be made in the terms as broadly sought by the AFAP. Accordingly an Order [PR569194] is issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Federation of Air Pilots, representing the pilots of Eastern Australia Airlines Pty Ltd trading as Qantaslink, sought to hold a ballot of its members to determine if they were prepared to take protected action. The airline opposed the ballot, arguing that the proposed industrial action would be unprotected. The dispute was heard in the Fair Work Commission, the tribunal with jurisdiction over workplace relations matters in Australia. The primary legal issue before the Commission was whether the proposed action by the pilots constituted protected industrial action under the Fair Work Act 2009. Specifically, the Commission had to determine whether the proposed action was in pursuit of an industrial dispute, as this was a necessary condition for the action to be protected.

The Commission examined the nature of the dispute, focusing on whether it related to the pilots' employment or conditions of employment. The pilots argued that the proposed action was in pursuit of an industrial dispute concerning the terms and conditions of their employment, particularly in relation to rostering practices. The airline, on the other hand, contended that the proposed action was not connected to an industrial dispute, as it was more of a protest against the company's operational practices. The Commission held that the proposed action was indeed in pursuit of an industrial dispute, as it was related to the terms and conditions of employment. The Commission found that the pilots' concerns about rostering practices were directly connected to their employment conditions, thereby satisfying the requirement for the proposed action to be protected.

The Commission determined that the proposed ballot for protected action could proceed, as it met the criteria for being protected industrial action. The airline's opposition was dismissed, and the pilots were permitted to hold the ballot. The decision underscored the importance of the nature of the dispute in determining the protected status of industrial action. The Commission's ruling reinforced the principle that actions related to employment terms and conditions are generally protected, provided they meet the statutory requirements. The outcome of the case ensures that the pilots have the right to organise and take protected action in pursuit of their employment-related grievances.

Australian Federation of Air Pilots v Eastern Australia Airlines Pty Ltd T/A Qantaslink

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established