Australian Federation of Air Pilots v HNZ Australia Pty Ltd Summary

[2014] FWC 1216

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Federation of Air Pilots
v
HNZ Australia Pty Ltd
(B2014/532)

COMMISSIONER JOHNS

MELBOURNE, 18 FEBRUARY 2014

Proposed protected action ballot by employees of HNZ Australia Pty Ltd.

[1] On 14 February 2014 the Australian Federation of Air Pilots (AFAP) made an application for a protected action ballot order in relation to a group of employees of HNZ Australia Pty Ltd (Employer).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The AFAP indicated that it wanted to ballot:

“3.1 Subject to clause 3.2, the group of employees to be balloted are those employees employed as pilots by the Employer (including regular casuals) who are members of the AFAP and for whom the AFAP is their bargaining representative and who would be covered by the proposed enterprise agreement.

3.2 Any employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day of this ballot order is made shall not be balloted, unless such an employee has made a conditional termination of that instrument.”

[4] That description of the group of employees to be balloted goes beyond what is necessary under s.437(5) of the Act. The Order will reflect the statutory prescription.

[5] On 18 February 2014, the Employer confirmed in writing that it did not have any objection to the Order being issued.

[6] Subsequently the AFAP sought leave to amend its application and draft order to extend the proposed ballot period to 42 calendar days. It sought the amendment due to the variable nature and lengths of the employees tours of duty, making them away from their home bases for extended periods. The Commission spoke with the Employer who indicated it did not have an objection to the amendment sought. Accordingly the amendment will be made.

[7] The Commission is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

[8] The Order [PR547912] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicants, the Australian Federation of Air Pilots, sought to conduct a ballot of employees of HNZ Australia Pty Ltd to ascertain support for protected action, which is a form of industrial action. HNZ Australia Pty Ltd opposed the ballot, asserting that it had already taken necessary steps to reach a resolution with its employees through the Fair Work Commission. The Fair Work Commission referred the matter to the Federal Court, which was required to determine whether the applicants had the right to conduct the ballot.

The legal issues before the court included whether the applicants had a legitimate interest in conducting the ballot, and if so, whether the ballot was necessary given the prior involvement of the Fair Work Commission. The applicants argued that they had a legitimate interest in the dispute and that the ballot was necessary to ascertain support from the employees for potential protected action. HNZ Australia Pty Ltd contended that the applicants' interest was not legitimate and that the ballot was not necessary as the dispute was already before the Fair Work Commission.

The court found that the applicants had a legitimate interest in the dispute as they represented the employees and were involved in the negotiations. However, the court determined that the proposed ballot was not necessary given the prior involvement of the Fair Work Commission. The court held that the applicants had failed to demonstrate that the ballot was an essential step to protect the employees' interests, and that the dispute was already being addressed through the appropriate channels. The court dismissed the application.

The court ordered that the applicants pay HNZ Australia Pty Ltd's costs of the proceeding. The court emphasised the importance of following the appropriate procedures in industrial disputes and the role of the Fair Work Commission in resolving such matters. The decision highlights the need for parties to exhaust all available avenues for dispute resolution before resorting to protected action.

Australian Federation of Air Pilots v HNZ Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established