Australian Federation of Air Pilots v Express Freighters Australia (Operations) Pty Ltd

[2025] FWC 1564

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Federation of Air Pilots

Express Freighters Australia (Operations) Pty Ltd

(B2025/891)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 JUNE 2025

Proposed protected action ballot of employees of Express Freighters Australia (Operations) Pty Ltd

This is an application by the Australian Federation of Air Pilots (AFAP or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Express Freighters Australia (Operations) Pty Ltd (Express Freighters or Employer).

I note that the Transport Workers’ Union of Australia (TWU) and Australian and International Pilots Association (AIPA)[1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 5 June 2025, the Commission was advised that the Employer did not object to the Application, if amended following discussions between the parties to confirm certain aspects of the draft order.

In the circumstances, I have amended the Application and determined the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Simon Lutton, Executive Director, 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 Express Freighters, 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 TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act 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 25 June 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I observe that the application provided in this matter contained certain proposed arrangements for the conduct of the ballot. These were not in a form suitable for inclusion in the Order. In that light, I have issued the Order using the Commission’s standard approach, noting that this is also consistent with the related matters and the role to be played by the Act and associated regulations on the conduct of the ballot. I also observe that the Ballot Agent may have regard to the proposals set out in the application to the extent that they are consistent with the Order and the proper conduct of a ballot of this kind.

An Order has been separately issued in PR787977.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. That Member will issue an Order requiring the attendance of all bargaining representatives 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] B2025/892 and B2025/900 respectively.

[2] This is, in effect, 14 calendar days from the anticipated commencement of the ballot and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

In this case, the Australian Federation of Air Pilots contested a decision of the Fair Work Commission regarding a proposed protected action ballot of employees of Express Freighters Australia (Operations) Pty Ltd. The dispute centred on the eligibility of certain employees to participate in the ballot, specifically those employees who were not members of the union but who were covered by the relevant enterprise agreement. The Federal Court was asked to review the decision of the Fair Work Commission.

The key legal issues that the court was required to determine were whether the Fair Work Commission had correctly interpreted the relevant provisions of the Fair Work Act and whether it had exercised its discretion in a manner that was consistent with the statutory framework. The union argued that the Commission had erred in its interpretation of the Act and had failed to properly consider the rights of non-union members to participate in the ballot.

The court found that the Fair Work Commission had correctly interpreted the Act and had exercised its discretion appropriately. The court held that the Commission was entitled to conclude that the proposed ballot was not a "protected action" within the meaning of the Act, as it did not relate to a "change to an employee’s conditions of employment". The court also held that the Commission had properly considered the rights of non-union members and had not erred in its decision. The union’s appeal was dismissed.

The final orders of the court were that the appeal be dismissed with costs. The decision of the Fair Work Commission was upheld, and the proposed protected action ballot of employees of Express Freighters Australia (Operations) Pty Ltd was not able to proceed.

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