Australian Federation of Air Pilots v LifeFlight Australia Limited T/A LifeFlight Australia
[2024] FWC 1341
•22 MAY 2024
| [2024] FWC 1341 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437—Protected action
Australian Federation of Air Pilots
v
LifeFlight Australia Limited T/A LifeFlight Australia
(B2024/541)
| COMMISSIONER SIMPSON | BRISBANE, 22 MAY 2024 |
Application for Protected Ballot Order – Opposed on the grounds that the AFAP not genuinely trying to reach an agreement – In the alternative proposed removal certain proposed questions – Proposed extended period to notify industrial action – PABO granted – proposed removal of questions dismissed - notice period extended for certain actions.
This decision deals with an application by the Australian Federation of Air Pilots (the AFAP / the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of LifeFlight Australia Limited t/a LifeFlight Australia (LifeFlight / the Respondent).
The AFAP filed the application on 14 May 2024, accompanied by a Form F34B Statutory Declaration in support of the application signed by James Mattner, Senior Industrial Officer.[1]
On 15 May 2024, the Commission’s Bargaining Support Team sent an email to the Respondent asking the Respondent to indicate whether it objected to the application by no later than 1:00pm on 15 May 2024.
At 12:48pm on 15 May 2024 the Respondent sent correspondence outlining their objections. The matter was then allocated to me and I listed it for a hearing on Friday, 17 May 2024 and issued directions for filing of further material.
At 4.59pm on 16 May 2024 the Respondent filed a statement from Shaun Gillott, General Manager of Operations at LifeFlight,[2] and a statement from John Payne, bargaining representative appointed by LifeFlight.[3]
At 5.05pm on 17 May the AFAP filed written submissions in response to the statements filed by LifeFlight.
On request from the parties, and on a consent basis, the hearing was adjourned and relisted on Monday, 20 May 2024. At the hearing the AFAP was represented by Mr David Stephens and the Respondent was granted leave to be represented by Mr Hamish Clift of Counsel instructed by Mr Dale Blackmore of Hall Payne Lawyers. The Respondent advised Mr Mattner was not required for cross examination and his Statutory Declaration was admitted as evidence. Similarly, the AFAP advised Mr Gillott and Mr Payne were not required for cross examination and those statements were also admitted into evidence.
Statutory Declaration of James Mattner
The statutory declaration submitted by Mr Mattner summarised the AFAP’s ability to make the application and summarised the history of the bargaining matters to demonstrate that the AFAP had been and is genuinely trying to reach an agreement with LifeFlight. The summary included the history of negotiations dating back to December 2022 and the dates of nineteen (19) meetings between the parties between 14 December 2022 and 22 November 2023, and five bargaining conferences arising from the extant s.739 dispute related to the bargaining. Mr Mattner sets out the circumstances leading up to an unsuccessful ballot of a proposed new enterprise agreement between the parties and the chronology of events that have occurred after the unsuccessful ballot. Some of these matters will be discussed in greater detail below.
RESPONDENT OBJECTION
Witness Statement of Shaun Gillott
The statement of Shaun Gillott gave evidence in response to the AFAP’s proposed actions as follows.
Proposed Action 1
An unlimited number of indefinite or periodic bans on the performance of work relating to accepting to work on a rostered day off (“Extra Shifts”)?
Mr Gillott stated that LifeFlight currently relies on extra shifts for the sustainability of our critical service.
Mr Gillott’s evidence was that the Respondent’s essential services are already impacted by the recognised global pilot shortage, and, although LifeFlight have developed a manning strategy which has progressed to implementation stage and are actively recruiting, LifeFlight will be reliant on extra shifts for another 12 months.
Proposed Action 2
An unlimited number of indefinite or periodic bans on the performance of work relating to using the company provided flight information recording application, actions relating to client billing and entering any post-flight information (except safety critical information) in online databases and electronic management systems, including but not limited to Air Maestro?
Mr Gillott stated this information is critical for the ongoing operational management of the rotary wing network. Specifically, this information is used to determine operational capability, availability for duty and task acceptance.
Proposed Action 3
An unlimited number of indefinite or periodic bans on the performance of work relating to accepting changes to rosters within 28 days of the roster proposed change?
Mr Gillott’s evidence was that LifeFlight currently relies on flexibility from its employees to support unexpected events such as personal leave for the sustainability of their critical service.
Mr Gillott stated that although LifeFlight has developed a manning strategy which has progressed to implementation stage and active recruitment, LifeFlight will be reliant on this flexibility for another 12 months.
Proposed Action 4
An unlimited number of indefinite or periodic bans on the performance of work relating to maintaining, updating, changing, distributing or managing company-provided Electronic Flight Bags (EFBs), Helicopter Landing Site (HLS) library (including SafeHelipads information), and company NOTACs (Notice to Aircrew)?
Mr Gillott stated the maintenance of accurate information regarding the Helicopter Landing Site library and operational procedural information is critical to safe operations. Any question of the validity of this information would be a critical safe concern.
Proposed Action 5
An unlimited number of indefinite or periodic bans on the performance of work relating to logging into, or accepting, or responding to work-related phone calls, text messages or emails on company-provided or personal computers, tablets or mobile devices for work-related purposes outside ordinary hours of work (except for employees who ordinarily receive an allowance or payment to be ready to return to work)?
Mr Gillott’s evidence was that the inability to communicate with staff could cause a failure of emergency services in times of critical events.
Proposed Action 6
An unlimited number of indefinite or periodic bans on the performance of work relating to all duty travel outside of ordinary rostered hours?
Mr Gillott stated due to the limitations and availability of commercial flights, LifeFlight relies on some duty travel flexibility to sustain operation at its remote bases.
Proposed Action 7
An unlimited number of indefinite or periodic bans on the performance of work relating to refuelling and towing of aircraft, provided this action shall not apply in preparation for, or during, an emergency service operation, a medical transport operation, or a mercy flight?
Mr Gillott stated refuelling and towing operations are critical elements of maintenance, training and ferry flights. All of these flights are required to support emergency service operations, medical transport operations, or mercy flights. The ceasing of maintenance, training and ferry flights would result in the inability to sustain emergency service operations, medical transport operations, or mercy flights.
Mr Gillott’s evidence was that the ceasing of maintenance, training and ferry flights would result in the inability to sustain emergency service operations, medical transport operations, or mercy flights.
Proposed Action 8
An unlimited number of indefinite or periodic bans on the performance of work relating to aircraft washing and husbandry?
Mr Gillott stated windscreen cleanliness is critical to flight safety. Cabin cleanliness is critical to patient and crew safety. LifeFlight regularly encounters bodily fluids in the cabin as LifeFlight transports patients with injuries or illness.
Proposed Action 9
An unlimited number of indefinite or periodic bans on the performance of work relating to aircraft decontamination, provided this action shall not apply in preparation for, or during, an emergency service operation, a medical transport operation, or a mercy flight?
Mr Gillott stated cabin decontamination is critical to safety of patients and crew. LifeFlight regularly encounters bodily fluids in the cabin when transporting patients with injuries or illness. Conducting decontamination in ‘preparation for’ a task would result in a contaminated aircraft in the hangar and delays in response as there are some decontaminations which takes hours.
Proposed Action 10
An unlimited number of indefinite or periodic bans on the performance of work relating to exercising CASA maintenance authorities, provided this action shall not apply in preparation for, or during, an emergency service operation, a medical transport operation, or a mercy flight?
Mr Gillott’s evidence was that Pilot Maintenance Authorities (PMA) allows pilots to conduct minor routine maintenance events. An increased demand on engineering support during 24-hour operations will decrease availability of engineering support for unscheduled and scheduled maintenance events.
Mr Gillott stated this will increase the aircraft offline time and indirectly impact emergency operations.
Proposed Action 11
An unlimited number of indefinite or periodic bans on the performance of work relating to wearing company uniforms (except for personal protective clothing and equipment) or displaying the company logo (that is, the company logo shall be covered)?
Mr Gillott stated Uniforms are PPE.
Mr Gillott’s evidence was that any covering of logos must be done in a way that does not degrade the protective nature of the fire resistance uniform, that does not impact the crews’ ability to egress the aircraft in an emergency or hinder the high visibility properties of the uniform.
Mr Gillott stated no modifications to the uniform which could result in potential injury or accident can be permitted due to workplace health and safety considerations.
Proposed Action 12
An unlimited number of 4-hour stoppages of work, provided this action shall not apply in preparation for, or during, an emergency service operation, a medical transport operation, or a mercy flight?
Mr Gillott stated it is unclear it is how this would operate, as they are on call while on shift and any stoppage of work during on call would impact response time.
Proposed Action 13
An unlimited number of indefinite or periodic bans on the performance of work relating to conducting client training or company training in an aircraft where the pilot is rostered on an operational shift and the aircraft is not remaining online and is immediately available to respond to an emergency task?
Mr Gillott stated the ceasing of training flights would result in the inability to sustain emergency service operations as QAS paramedics fall out of training currency.
Proposed Action 14
An unlimited number of 6-hour stoppages of work during company-mandated training activities, including HUET and Simulator Training?
Mr Gillott stated the availability of resources required to conduct training would result in long lead times to recover the event if a 6-hour stoppage was conducted. The delays in rescheduling of training events would result in the inability to sustain emergency service operations as crew will fall out of training currency.
Proposed Action 15
An indefinite ban, or an unlimited number of periodic bans, on the performance of work relating to speaking to the media, other than to advise of the taking of protected industrial action by employees and the reason for the taking of the industrial action?
Mr Gillott stated there would be no operational impact.
Proposed Action 16
An indefinite ban, or an unlimited number of periodic bans, on the performance of work relating to filming any footage or taking any photographs for the purposes of LifeFlight media reporting or coverage?
Mr Gillott stated there would be no operational impact.
Witness Statement of John Payne
Mr Payne summarised the history of the bargaining matters, that LifeFlight is a registered charity and community organisation and that its core business is the provision of aeromedical retrieval services, including helicopter (also known as rotary wing) and fixed wing services, having contracts with the Queensland Government as well as a consortium of private companies for the provision of aeromedical retrieval services.
Mr Payne described the history of a separate dispute application C2022/7360 brought under section 739 of the Act by the Applicant against LifeFlight. This dispute was brought under the dispute settling procedure in the expired but still operative LifeFlight Australia Limited Rotary Wing Pilots' Enterprise Agreement 2021 (the Agreement). Mr Payne’s evidence is that this dispute is directly related to bargaining as it is about annual indexed pay increases under the Agreement and whether LifeFlight has increased pay rates by the amount required under the Agreement, and this dispute remains unresolved. Mr Payne gave evidence that at the time of the listing of the dispute it was the position of LifeFlight that, whilst the indexation dispute in C2022/7360 remained unresolved, bargaining could not proceed between the parties as LifeFlight was not able, in those circumstances, to assess the capital resource it could provide in relation to the bargain and the manner in which that resource could be allocated, and this was set out in detail in correspondence that was forwarded to Captain Pole, President of the AFAP on 8 August 2023.
Mr Payne referred to Mr Mattner having set out the bargaining between the parties in 2022 and 2023 however did not explain that the industrial context in which bargaining was occurring at that time, including that C2022/7360 was listed for arbitration and final determination on 27 September 2023 and during the course of arbitration that as a result of an exchange between LifeFlights Legal Representative and a pilot representative giving evidence, the parties agreed to adjourn the arbitration and to resume bargaining with the assistance of the Fair Work Commission.
Mr Payne described the significant progress in bargaining with the assistance of the Commission, and an understanding that if an agreement was made that the Applicant would discontinue dispute C2022/7360. Mr Payne said this understanding formed the basis of a number of compromises made by LifeFlight during bargaining. Mr Payne said on about 18 December 2023, the representatives of the Applicant and LifeFlight had reached a final agreement on the terms of the Replacement Agreement. In addition to reaching the agreement on the terms of the Replacement Agreement, the representatives of the Applicant and LifeFlight agreed that the Applicant would discontinue C2022/7360 in the event that the Replacement Agreement was made pursuant to section 182 of the Act.
Mr Payne said he understood that reaching agreement as to the terms of the Replacement Agreement and the terms of the discontinuance reflected the employees of LifeFlight’s wishes to discontinue C2022/7360 in favour of more beneficial pay rates and pay increases under the proposed agreement. Mr Payne said it was on this basis that the terms of the Replacement Agreement were put to a ballot of the employees of LifeFlight, and a report setting out these matters, and related matters, was provided to the Commission when it sought an update as to the status of C2022/7360 in early February 2024. In January 2024, the relevant employees of LifeFlight (Employees) voted to reject the terms of the Replacement Agreement, with the result of the vote 18 Employees in favour of the Replacement Agreement and 20 against the Replacement Agreement.
Mr Payne said after the employees rejected the terms of the Replacement Agreement, the Applicant emailed LifeFlight on 26 January 2024 indicating that given the ballot outcome, the AFAP would be undertaking a process of further discussions with members at LifeFlight to determine what changes they seek in any draft EA, in order to ensure that a majority of Pilots were prepared to support that modified document. Mr Payne said in his evidence that neither the AFAP or its employees representatives had provided LifeFlight copies of surveys, or the results of the surveys conducted with the membership of the AFAP after the unsuccessful ballot.
Mr Payne’s evidence was to the effect that the AFAP had ignored LifeFlight’s requests for specific details of what the AFAP wanted to discuss when it proposed further meetings, and this resulted in LifeFlight lodging a dispute on 13 March 2024 under section 240 of the Act (B2024/218) and this matter was listed for conference on 26 March 2024. Mr Payne also responded to Mr Mattner’s evidence concerning LifeFlight’s conduct in this period leading up to further conferences before the Commission including that the matters between the parties would be dealt with in the Commission.
Mr Payne gave evidence about these further conferences before the Commission in matter B2024/218 on 26 March and 15 April 2024. Mr Payne’s evidence was to the effect that whilst the AFAP did produce a ‘Green and Gold Version’ draft Replacement Agreement there were no costings provided and LifeFlight requested additional documents in support of the claims being made in the Green and Gold Version to allow it to consider those claims, and the Applicant indicated that they would provide those documents prior to the next scheduled conference.
The matter was adjourned for two weeks to permit LifeFlight an opportunity to consider the claims in the Green and Gold Version and due to the occurrence of school holidays. Mr Payne said the AFAP did provide some materials ahead of the next conference, but they did not go to each of, or a significant number of, the claims contained in the Green and Gold Version, and they did not provide costings.
Mr Payne set out his recollection of discussions during the conference on 15 April 2024, including discussions in private session, including LifeFlight’s assessment of the costs of the AFAP’s claims in the Green and Gold Version of a proposed Replacement Agreement.
Mr Payne referred to the evidence of Mr Mattner concerning LifeFlight’s intention to include a ‘set-off’ clause in the proposed Replacement Agreement. Mr Payne said the representatives of LifeFlight have since approximately May 2023 advised the Applicant that the terms of the proposed agreement were intended to set off any favourable outcome in C2022/7360, and included reaching an agreement to discontinue C2022/7360 upon the proposed agreement being made.
Mr Payne said at the conference on 15 April the Applicant indicated that they intended to pursue C2022/7360 in relation to the rate of indexation, subject to consulting with their members.
Mr Payne said in the present circumstances, further bargaining cannot presently occur in good faith. The AFAP has not discontinued C2022/7360 and is still pressing that claim, and consequently LifeFlight does not know whether it will be obliged to pay both backpay, reflecting the alleged value of the indexation sought by the Applicant, and the pay rates under the proposed agreement being pay rates that were agreed to on the basis that the Applicant discontinue C2022/7360.
Mr Payne said given that LifeFlight is a not-for-profit charitable organisation, it is a risk that LifeFlight cannot take. Further he said the AFAP has not progressed C2022/7360 but continues to request to meet with LifeFlight. He said LifeFlight has advised the AFAP that it will resume bargaining as soon as the indexation issue in C2022/7360 is finally determined, and LifeFlight’s position, that it cannot bargain until C2022/7360 is finally determined, is consistent with what was put to Captain Pole in the correspondence of 8 August 2023.
Mr Payne also referred to concerns it has raised in relation to section 229 of the Act, and a separate application in that regard, specifically that the AFAP has engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining stemming from an article published by the AFAP on 18 April 2024.
SUBMISSIONS
LifeFlight objected to the application on the basis that it says the Commission cannot be satisfied on the evidence that the requirements of section 443(1)(b) of the Act are met. The Respondent submitted that the statutory declaration of Mr James Mattner in support of the Applicant’s application does not comprehensively disclose all matters that are relevant to the assessment to be made by the Commission. LifeFlight referred to a number of authorities in its submissions. One of those was a decision of a Full Bench of the Fair Work Commission in Esso Australia Pty Ltd v Australian Manufacturing Workers’ Union[2015] FWCFB 210 where the Full Bench was required to consider whether the Union was genuinely trying to reach an agreement. The Full Bench said the following at paragraph 18.
“[16] The appellant contends that while the Unions responded to the proposals it advanced during bargaining they did not provide any reasons for some of those responses, despite being requested to do so. On this basis it is contended that the Unions have not complied with the good faith bargaining requirements, and in particular the requirement that they give reasons for their responses to the proposals of another bargaining representative (see s 228(1)(d)). The appellant submits that the Commissioner gave no real consideration to this matter and that the failure to do so was an error.
[17] We are not persuaded that the Commissioner erred in the manner contended. The argument advanced by the appellant on appeal was not put at first instance. While the matter was the subject of some evidence before the Commissioner at no stage did the appellant contend that the Unions had not met their good faith bargaining requirements because they had failed to provide reasons for some of their responses to Esso’s proposals. The appeal process is not intended to provide an avenue for an unsuccessful party to seek to redress deficiencies in the manner in which their case was run at first instance. The failure to consider an argument which was not put is not an error in circumstances where the relevant evidence is far from unequivocal. Such was the case here, indeed there was a significant conflict in the evidence about this issue. While the appellant pointed to some evidence in support of its contention that the Unions had failed to provide reasons for some of their responses, two of the Unions’ witnesses gave evidence that reasons for their responses had in fact been provided — orally during the course of discussions facilitated by Commissioner Johns.
[18] In any event, while there is a relationship between the good faith bargaining requirements and the concept of genuinely trying to reach an agreement, it would be wrong to conflate these terms. A party may not meet a particular good faith bargaining requirement but may nevertheless be genuinely trying to reach an agreement.”
LifeFlight submitted this authority supports the submission that there is a relationship between good faith bargaining and genuinely trying to reach an agreement, and in circumstances where LifeFlight has made an application under section 229 that the AFAP is not meeting the good faith bargaining requirements, the FWC would be slow to find an applicant has acted genuinely to reach an agreement. LifeFlight submitted that correspondence between the parties indicates that the AFAP sought to initiate further bargaining to initiate new claims after the unsuccessful ballot, and LifeFlight sought details about the issues employees had with the proposed agreement.
LifeFlight said the AFAP continued to seek further meetings and LifeFlight sought further details about the issues for discussion and on not receiving that lodged a dispute under section 240 of the Act. LifeFlight submits that the AFAP seeks to obtain the benefits of compromises made by LifeFlight in the context of trying to reach an agreement in light of the ongoing indexation dispute and seeks to obtain the compromises whilst still pressing the dispute to arbitration or resolving it by agreement.
LifeFlight submitted it seemed to LifeFlight that in the course of the conference on 15 April the AFAP no longer sought the claims in the Green and Gold document and instead pressed for parity with the QG Air Agreement. LifeFlight referred to an email sent from Mr Dore, a former employee representative, to employees prior to the unsuccessful January 2024 ballot, where he stated that he believed the proposed agreement achieved parity with QG Air.
LifeFlight submitted in summary four points in closing submissions. Firstly, that the AFAP has not been bargaining in good faith in light of what it describes as capricious conduct in reference to the matters that will be the subject of the section 229 application. Secondly, that the AFAP wants to ‘have its cake and eat it too’ by reserving its right to pursue the indexation dispute, and also seeking to capitalise on concessions made and seeking further increases in pay and conditions. Thirdly, despite advancing the position that parity with the QG Air had been achieved in respect to the earlier proposed agreement voted down, it appears to have approbated and reprobated by putting the Green and Gold Version, withdrawing it, and then saying QG Air Parity is acceptable but not describing why or how this has not been achieved. Finally, instead of responding to requests for information, it instead simply asks for meetings. On that basis the AFAP is not genuinely trying to reach an agreement.
The AFAP submitted that there are only two potential issues for determination:
are the PAB questions clear to a pilot being asked to vote?
is the applicant genuinely trying to reach agreement?
The AFAP submitted that everything else is irrelevant. It was submitted that the AFAP filed the Application in accordance with the procedural requirements of the Act, hence satisfying that part of s.437 and has demonstrated that it has been and is continuing to try to reach agreement under s.437 as made good by the evidence of Mr Mattner.
The AFAP submitted the Respondent’s objections do not contest the accuracy of Mr Mattner’s statement, the AFAP has satisfied the requirements of the Act, and the orders ought be granted.
LifeFlight submitted in closing oral submissions that it does not contest that clarity of the questions to be put to employees. LifeFlight set out in its objection letter to the Commission in advance of the hearing six matters on which is relied to assert the AFAP was not genuinely trying to reach an agreement.
Ground one
LifeFlight submitted that there was an agreement reached between LifeFlight and the AFAP in relation to the terms of a proposed agreement, which was put to a ballot of employees of LifeFlight. The AFAP submitted this issue was addressed in the statement of Mr Mattner, and while the agreement reached reflects attempts to reach agreement (the referred to “proposed agreement” was “voted down” by employees), it is also indicative of the AFAP’s general genuine attempts to try to reach agreement.
Ground two
LifeFlight relies on correspondence sent from LifeFlight to the AFAP which it says accurately demonstrates the current state of bargaining, the present position of bargaining between the parties and the conduct of the AFAP in response to matters raised by LifeFlight Australia. The AFAP says in response that LifeFlight’s subjective view of the state of bargaining is of no moment to the application, other than to confirm that bargaining is continuing, agreement has not been reached, the AFAP is continuing to try to reach agreement, and the protected rights under the Act are a legitimate “tool” in the armoury of employees to try to reach agreement.
Ground three
LifeFlight refers to the parties also being parties to a dispute before the Commission (brought by the AFAP), regarding pay increases under the current agreement, the outcome of which will significantly impact the terms of the proposed agreement. The AFAP submitted that an extant dispute is of no moment. At any rate the material appended to the statement of Mr Mattner restates the parties’ objective, and especially the AFAP’s commitment, to settle that dispute as an outcome of bargaining, again indicative of the AFAP’s genuine attempts to reach agreement.
Ground four
LifeFlight says the AFAP indicated that they intend to seek final determination of that dispute, but have not progressed that matter before the Commission. The AFAP submitted that intention is of no moment to the application. Moreover, it has been noted by the Commission. The AFAP submitted to the extent LifeFlight seeks mileage on this point, of which there is none to be gained, it is noted LifeFlight itself has not acted on its intention to “re-put” its proposed agreement to vote, reflecting the fact there is no agreement to put to employees, and that the AFAP is trying to reach agreement.
Ground five
LifeFlight relies on correspondence sent from LifeFlight to the AFAP regarding concerns that the AFAP has engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining. The AFAP submitted any purported concerns have been responded to in correspondence already in these proceedings. However, no negative inference is available. The matter is only now before the FWC listed for Mention in matter B2024/525.
Ground six
LifeFlight relies on the parties also being parties to a number of matters before the Commission in which bargaining orders are sought. The AFAP submitted the further proceedings referred to involve allegations that the Respondent is not meeting its good faith bargaining obligations by refusing to meet, refusing to respond to proposals, and refusing to provide relevant information. The fact that orders of this nature are sought by the AFAP make good the attempts to genuinely try to reach agreement. However, these matters are yet to be agitated. They are also listed for Mention in B2024/542.
Respondent witness evidence
The AFAP submitted the evidence of Mr Gillott goes to the impact of industrial action flowing from the questions proposed to be put to ballot, and the impact of the actions are not germane to a proceeding under s.437. The AFAP submitted Mr Payne’s evidence is misconceived and, improperly seeks to recharacterise the conduct of the parties for the purposes of satisfying the requirements of s.437. The AFAP submitted Mr Payne does not seriously challenge the facts of Mr Mattner’s statement, other than perhaps to re-characterise some bargaining meetings attended by Mr Mattner. However, that merely serves to enhance the AFAP’s credibility in trying to reach agreement. The AFAP submitted that no agreement has yet been made, and the fact of an agreement being reached to put a proposed agreement to vote does not compromise the credibility of the AFAP in trying to reach an agreement.
The AFAP submitted Mr Payne does not deny the AFAPs attempts to try to reach agreement, nor challenge the continuing efforts of the AFAP to try to reach agreement, including affirming agreement in relation to the extant dispute of which Mr Payne is misplaced in relying on. The AFAP submitted that nothing in the evidence of Mr Payne addresses for the purposes of objecting to the Application, the primary matters to be considered by the FWC in determining the Application.
The AFAP submitted that Mr Payne’s criticisms of the AFAP surveys are wrong. The AFAP submitted it conducted the surveys, advised LifeFlight of the outcomes of the surveys and proposed an agreement based on those surveys. The AFAP said it does not yet have a copy of LifeFlight’s responses to its most recent proposed agreement.
The AFAP said Mr Payne in his statement appears to declare the contents of private conciliation discussions in the Commission publicly and prejudicially. The AFAP submitted if it’s correct that Mr Payne was asserting that the AFAP had abandoned claims in those discussions that conduct should be condemned. The AFAP submitted it does not recall the matters being discussed in joint session, however regardless of whether it was raised in private or joint session that is where it must stay. The AFAP submitted that in any event on Mr Payne’s version it also demonstrates the AFAP was working hard to achieve an agreement.
The AFAP said Mr Payne attempted to recharacterise the understanding concerning discontinuing the dispute C2022/7360 in the event of an agreement being reached for a new agreement. The AFAP submitted there has never been an agreement for an offset clause and it is disingenuous to suggest otherwise. The AFAP submitted that on 6 May 2024 it wrote to LifeFlight affirming its commitment to discontinue C2022/7360 in the event of a new agreement being reached.
Notice Period under section 443(5)
In the event that the Commission determined to issue a PABO, LifeFlight relied on the statement of Mr Gillott to argue an extended period of notice should be specified of seven working days. Life Flight referred to a decision of a Full Bench of the Fair Work Commission in National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 and the passage below in relation to relevant considerations in exercising power under section 443(5) of the Act.
“[21] The meaning of “exceptional circumstances” in the context of s.463(5) of the Workplace Relations Act 1996 (WR Act) was discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation. In the case Lawler VP said:
“[10] … In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.”
[22] Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the Act. We consider the discussion extracted above is apposite to the phrase “exceptional circumstances justifying” in s.443(5).
[23] The determination of whether the circumstances in a particular case are ‘exceptional’ involves an evaluative judgement. A proper approach to the exercise of the Commission’s discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase “exceptional circumstances” carries its ordinary meaning.
[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances “justifying” a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb “justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.
[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).”
LifeFlight also submitted that certain questions proposed by the AFAP for ballot should not be included by the Commission in the Order on the basis that the Commission should consider whether any of the questions would lead inevitably to an application under section 424, and specifically section 424(1)(c) which provides the Commission power to suspend to terminate protected industrial action that has threatened, or threatening, or would threaten to endanger the life, the personal safety or health, or the welfare, of the population or of part of it. LifeFlight submitted that Mr Gillott’s statement went to the likelihood of any of the proposed industrial action having the effect that it would empower the Commission to make an order under section 424. It was submitted there is no safety undertaking or blanket carve out for matters in relation to section 424.
Life Flight submitted having regard to section 577 and 578 of the Act the Commission would, having regard to section 599, exclude some questions. In this regard LifeFlight referred to a decision of the Full Bench of the Fair Work Commission in National Tertiary Education Industry Union v Curtin University[2022] FWCFB 204. LifeFlight referred to paragraph 55 of that decision. I have included below the preceding paragraph from that decision as well.
“[54] As earlier stated, s 443(1) imposes a duty on the Commission to make a protected action ballot order if the requirements of paragraphs (a) and (b) of the subsection are met. The mandatory nature of s 443(1) is the most important factor governing the construction of s 443 as a whole. It should not therefore be considered that, in respect of a valid application for a protected action ballot order, the Commission is at large as to the terms of the order to be made subject to satisfaction of the content requirements in the section. The inference to be drawn from the mandatory nature of s 443(1) is that the order required to be made is one which gives effect to an application validly made under s 437. Thus, in respect of s 443(3)(d), we do not consider that the Commission has a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for.
[55] That is not to say that the Commission is compelled, in making an order, to reproduce the questions in precisely the same terms as applied for. Section 599 of the FW Act provides that, except as provided by the FW Act, the Commission is not required to make a decision in relation to an application in the terms applied for, and there is no reason to think that anything in s 443 ousts the operation of s 599. If there is some adjustment which can be made to the text of a question in order to more clearly express what the applicant proposes, then that may be done in discharging the requirements of s 443(1) and (3)(d). In rare cases, there may also be applications which, while they contain a number of questions which meet the requirements of s 437(3)(b) and are thus validly made under s 437, contain a question which is so lacking in meaning that it is incapable of being answered. In that circumstance, unless the drafting of the question can be rectified in a way consistent with the applicant’s intent, it may be necessary to make an order pursuant to s 443(1) which excludes that question.”
LifeFlight said it has not been able to find a decision that was on all fours with the submission it was making. LifeFlight said the questions should be struck from the order are the proposed actions in Question 1, as it would have an impact on the sustainability of an emergency service. Question 2, and 3 are said to be of the same kind. Proposed action in Question 4 should not be ordered as it is critical to safe operations and if action of this nature was notified there is no doubt LifeFlight would make an application under section 424 seeking to restrain that action. It was submitted Question 7 is of a similar nature to Questions 2 and 3, and 8 and 9 are of a kind as proposed by Question 4, as is Question 11.
The AFAP submitted that what was put by LifeFlight was a pitch to make it easier to manage the industrial action. The AFAP said that Question 1 deals with people working on their rostered day off. Question 2 deals with a requirement to submit client billing and includes an exclusion for safety critical information. In relation to Question 3 the AFAP said LifeFlight has admitted that it has developed a manning strategy and progressed to implementation stage. In relation to Question 4 the AFAP said it does not go to the question of safety. In relation to Question 5, it involves activities outside of ordinary hours or work and exempts employees who receive an allowance for that. Question 6 refers to duty travel outside of the employees ordinary hours of work. Question 7 provides for an exemption such that it shall not apply in preparation for, or during, an emergency service operation, a medical transport operation, or a mercy flight. Question 8 deals with the washing of aircraft and pilots are not the only ones capable of washing an aircraft. In relation to Question 9 there is an exemption such that the action shall not apply in preparation for, or during, an emergency service operation, a medical transport operation, or a mercy flight as is the case for Question 10 concerning maintenance work. Question 11 pertains to the clothing worn, and Question 12 also does not apply in preparation for, or during, an emergency service operation, a medical transport operation, or a mercy flight and Question 13 deals with aircraft reliant on responding being exempt. Question 14 pertains to specific training and is not live work.
The AFAP submitted the Commission has not received specific evidence on the particular impact of the proposed action requiring extended notice, suggesting that there is no unique or distinctive nature of proposed action and instead LifeFlight submits everything needs to require 7 days. The AFAP submitted in relation to the submission that the Commission should exclude certain questions that section 424(1) makes clear that it pertains to action being engaged in, or is threatened, impending or probable.
Conclusion
I have considered each of the matters raised in the evidentiary case of the Respondent in its objection to the AFAP having satisfied the requirements of section 443(1)(b). In JJ Richards & Sons Pty Ltd v Transport Workers; Union of Australia [2010] FWAFB, the Full Bench majority said as follows regarding proof that a party is genuinely seeking to reach agreement:
“[58]The expression “genuinely trying” in s.443(1)(b) is, clearly enough, concerned with the genuineness of the “trying”, the efforts, to reach the stated goal, namely an enterprise agreement that meets the requirements of the FW Act. It is directed at the authenticity of the applicant’s efforts to reach that goal. The genuineness or authenticity of an applicant’s efforts to reach that goal will turn on its motivation - the intention, object or purpose.
[59]The evident purpose of section 443 is to ensure that a bargaining representative has no access to a protected action ballot, and therefore to protected industrial action, unless that bargaining representative “has been, and is, genuinely trying to reach an [enterprise agreement]”.
[60]The expression “genuinely trying to reach an agreement” appears in three sections in the FW Act: s.412, s.413 and s.443. As was held by the Full Bench in John Holland Pty Ltd v AMWU (John Holland), it is clear from s.412(5) that the legislature intended that expression to have a particular meaning in s.412 that should not affect the proper construction of the expression as it appears in other provisions of the Act. The requirement that an employee bargaining representative (union) be “genuinely trying to reach agreement” is imposed not only as a precondition to obtaining a protected action ballot, it is also a precondition to actually taking protected industrial action: this is one of the “common requirements” specified in s.413.
[61]As was noted by the Full Bench in Woodside Burrup, “[p]rotected industrial action in support of claims for an enterprise agreement, as authorised by the FW Act, is the only lawful mechanism available to employees to achieve improvements to wages and conditions that an employer is not otherwise prepared to agree to.” Price inflation, to a greater or lesser extent, is part of the usual state of affairs in the economy (that is, inflation is the norm and deflation the exception). The effects of inflation mean that employees need to obtain wage increases periodically if they are to avoid a decrease in the real value of their wages. It follows that a union acting as an employee bargaining representative will almost invariably have a genuine reason for seeking an enterprise agreement to cover members who have not had the benefit of a wage increase for some time.
[62]In the ordinary course of events where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act, what may be described as an evidentiary onus shifts to the party or parties opposing the application to demonstrate why that evidence ought not be accepted sufficient to shift the evidentiary onus back to the applicant.
[63]In circumstances where an applicant for a protected ballot order calls (acceptable) evidence that their intention, object or purpose is to reach an enterprise agreement under the FW Act a finding that the applicant was not “genuinely trying to reach an [enterprise] agreement” within the meaning of s.443(1)(b) will necessarily involve accepting evidence establishing that the applicant had some other, extraneous purpose in seeking the ballot. Indeed, when there is evidence from an applicant for a protected action ballot order that they have been and are “genuinely trying to reach an [enterprise] agreement” under the FW Act, it is difficult to conceive of circumstances where it could properly be found they were not, unless there is cross-examination or other evidence establishing that the applicant in truth has some other, extraneous intention, object or purpose or is seeking something other than an enterprise agreement under the FW Act. For example, the evidence may demonstrate that the applicant is pursuing an agreement that it knows or ought reasonably knows would not be an enterprise agreement within the meaning of the FW Act because it contains non-permitted matters contrary to s.172(1) or that the true motivation is to apply pressure in pursuit of political or environmental goals or simply to punish the employer for some perceived wrong doing.”
It is no doubt frustrating that many hours of lengthy negotiations both directly between the parties, and with the assistance of the Commission, has gone into the proposed agreement that was put to employees in January 2024, and that proposed agreement was subsequently voted down by the narrowest of margins. This is particularly the case when there exists separate proceedings between the parties in dispute C2022/7360, which were adjourned part heard in an effort to attempt to conclude a new enterprise agreement and resolve that dispute as part of an agreed package. The chronology of events however frustrating and tortured as they may be, do not support a conclusion that the AFAP has not been, or is not now trying to reach an agreement.
The Act provides at section 182 that a proposed single enterprise agreement is made when a majority of employees who cast a valid vote approve the agreement. No majority vote has been achieved despite the attempts of the parties, however those circumstances as set out in ground one is not a basis to doubt the AFAP has satisfied s.443(1)(b).
On the second ground I do not agree that what has been put before the Commission in relation to the correspondence sent from LifeFlight to the AFAP concerning the current state of bargaining and the conduct of the AFAP in response to matters raised by LifeFlight indicates that the AFAP has not been genuinely trying to reach an agreement.
On the third ground LifeFlight refers to the parties being in dispute in the Commission over the indexation dispute, and the AFAP wanting to ‘have its cake and eat it too’ by reserving its right to pursue the indexation dispute, and also seeking to capitalise on concessions made and seeking further increases in pay and conditions. The AFAP submitted that an extant dispute is of no moment and the AFAP’s commitment to settle that dispute as an outcome of bargaining, is again indicative of the AFAP’s genuine attempts to reach agreement. There is no doubt the parties are in genuine dispute over the indexation issue. The existence of this dispute which arises under the existing expired and still operative agreement, and the way it has been progressed, or not progressed, does not indicate that the AFAP have not satisfied s.443(1)(b).
I agree with the AFAP submission in relation to ground four that the timing of when it intends to progress the indexation dispute to final arbitration does not undermine its case that it has been and continues to genuinely try to reach an agreement. Prior to the commencement of the hearing of this matter I put the parties on notice by email correspondence sent from chambers that I was considering bringing matter C2022/7360 back on for final hearing on my own initiative and requesting that the parties seek instructions on dates for the availability of counsel. LifeFlight subsequently indicated they support this course. The AFAP sought and was granted an opportunity to be given a short period of time to consider its response to my preliminary view that C2022/7360 should proceed to final hearing.
In relation to grounds five and six, both are related to issues involving LifeFlight’s section 229 application asserting that the AFAP has engaged in capricious or unfair conduct that undermines freedom of association or collective bargaining by the issuing of a newsletter with information it asserts is false and misleading. The s.229 application has now been listed for hearing and directions issued for the filing of evidence and submissions however it is yet to be heard and determined. I note LifeFlight’s assertion that the separate questions of good faith bargaining and genuinely trying to reach an agreement can be related, as was said in Esso, however it was also said by the Full Bench in Esso that the separate questions should not be conflated. I have considered LifeFlight’s evidence and submission on grounds 5 and 6 issue and have concluded they are not a basis to find the AFAP have not satisfied s.443(1)(b) when considered in the light of all of the evidence.
LifeFlight referred to a communication from a former employee representative Mr Dore to employees just prior to the unsuccessful ballot indicating in his view parity with QG Air had been achieved. Regardless of Mr Dore’s opinion on the matter prior to the last ballot, the ballot was unsuccessful. It appears from the evidence that the current representatives of the AFAP are proceeding on the basis of the views communicated to them by their membership.
LifeFlight has asserted that despite Mr Dore advancing the position that parity with the QG Air had been achieved in respect to the earlier proposed agreement that was voted down, the AFAP appears to have approbated and reprobated by putting the Green and Gold Version of a proposed agreement, withdrawing it, and then saying QG Air Parity is acceptable but not describing why or how this has not been achieved. I do not intend to afford any significant weight to the issues raised in the evidence of Mr Payne concerning what may or may not have been discussed in private session during the dispute conference on 15 April 2024. It would not be appropriate to allow reliance to be placed on what may or may not have been put by one party to the Commission in private session and communicated to the other party by the Commission in private session to explore resolution to the dispute between the parties. On that basis I do not intend to address the particulars of the issue however I note for the benefit of the parties that it seems as things stand the parties do not have a common understanding of what parity with QG Air Agreement actually means in any event. Difficulties will inevitably arise when discussions proceed down a path of comparing different enterprise agreements that contain different terms and conditions.
LifeFlight has also complained that instead of responding to requests for information from it, the AFAP simply asks for meetings and on that basis the AFAP has not satisfied s.443(1)(b). The AFAP did provide some details of matters in its correspondence to LifeFlight. I am not satisfied even if the AFAP should have provided more details to writing to LifeFlight than it did, including in relation to costings, that therefore means it has not been, or is not now genuinely trying to reach an agreement.
I have taken into account all of the matters raised by LifeFlight to argue the AFAP has not satisfied the requirements of section 443(1)(b). Having considered all of those issues individually and in their totality, the evidence and submissions of LifeFlight have not persuaded me that the AFAP has not been genuinely trying to reach an agreement with LifeFlight, and I am satisfied on the basis of the material before me, including the declaration of James Mattner, setting out the steps taken by it in bargaining that the AFAP has been, and is, genuinely trying to reach an agreement with LifeFlight.
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.
In relation to section 443(5), I am satisfied based on the uncontested facts contained in the statement of Mr Gillott that there are factors or circumstances that are exceptional circumstances given the nature of the work of the employees of LifeFlight being emergency services. I have considered that evidence and the submissions of the AFAP in response. I am required to consider whether the identified exceptional circumstances are circumstances “justifying” a longer notice period, which involves an evaluative judgement made on the basis of probative material.
I am satisfied that it is appropriate to exercise my discretion to extend the notice period for the written notice referred to in paragraph 414(2)(a) to 5 days, in relation to proposed industrial action described in Questions 1, 2, 3, 4, 5, 6, 10 and 12. I am satisfied that the evidence of Mr Gillot in relation to those proposed forms of action justify the conclusion that it is reasonable to require a longer period of written notice in relation to those proposed forms of action given the nature of LifeFlight providing emergency services. I have not been satisfied it is necessary to do so in relation to the other forms of action, given either the nature of those forms of action, and/or the exemptions provided in the questions themselves.
I do not intend to exclude any questions from the PABO as proposed by LifeFlight. The decision in National Tertiary Education Industry Union v Curtin University referred to by LifeFlight supports the proposition that the Commission does not have a general discretion to determine the questions which will be included in the order, or to simply exclude valid questions, independent of what has been applied for. This tells against what LifeFlight seeks. Paragraph [55] of the decision referred to by LifeFlight is authority for the proposition that the Commission has power to amend the wording of questions for the purposes of clarity, or if a question is so poorly drafted that it is not capable of being understood, and is also not capable of being rectified, that it is open to exclude such a question. There is no suggestion that those circumstances arise here. LifeFlight did not contest the clarity of the questions. There has been no suggestion that the proposed actions are not industrial action, which can be another basis to challenge the inclusion of a question proposed to be put in a PABO.
The ballot is to be conducted by True Vote Pty Ltd. For the purposes of s.443(3)(c) and s.448A(2) of the Act, the ballot period is 14 calendar days from the date of the Order.
An order has been separately issued in PR775239.
The Commission will separately issue a Notice of Listing and Orders requiring attendance at a conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
COMMISSIONER
Appearances:
Mr David Stephens for the Applicant.
Mr Hamish Clift of Counsel instructed by Mr Dale Blackmore of Hall Payne Lawyers for the Respondent.
Hearing details:
2024
By Microsoft Teams Video
20 May.
[1] Exhibit 1
[2] Exhibit 2
[3] Exhibit 3
Printed by authority of the Commonwealth Government Printer
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