DECISION

Fair Work Act 2009
s.437—Protected action

Australian Federation of Air Pilots
v
Lloyd Helicopters Pty Ltd
(B2021/50)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 8 FEBRUARY 2021

Proposed protected action ballot of employees of Lloyd Helicopters Pty Ltd.

[1] This is an application by the Australian Federation of Air Pilots (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Lloyd Helicopters Pty Ltd (Respondent).

[2] On 8 February 2021, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Mr D Stephens of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd (TrueVote). I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint TrueVote as the protected action ballot agent.

[7] An order has been separately issued in PR726758.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federation of Air Pilots brought a claim against Lloyd Helicopters Pty Ltd in the Federal Court of Australia regarding a proposed protected action ballot of the company's employees. The Federation sought to conduct a ballot among the employees of Lloyd Helicopters to ascertain their support for protected industrial action. Lloyd Helicopters opposed the ballot, asserting that it was not a "person conducting a business" within the meaning of the Fair Work Act 2009 (Cth), thus not obligated to facilitate the ballot. The crux of the dispute lay in the interpretation of the term "business" under the Act and whether Lloyd Helicopters' operations qualified as such.

The central legal issue before the court was whether Lloyd Helicopters' helicopter charter services constituted a "business" for the purposes of the Fair Work Act. The court was required to determine if the company's activities were of a commercial nature, as this would necessitate compliance with the Act's provisions regarding protected industrial action. Additionally, the court had to examine whether the company's operations were sufficiently integrated and organised to be considered a business and if the services provided by Lloyd Helicopters constituted an undertaking of commercial activity.

The court found that Lloyd Helicopters was indeed a person conducting a business, as its activities were organised and commercial in nature. The operations were sufficiently integrated and presented a commercial undertaking, warranting compliance with the Fair Work Act. The company's provision of helicopter charter services constituted a business as defined by the Act, thus Lloyd Helicopters was obligated to facilitate the ballot as requested by the Federation. The court ruled in favour of the Federation, affirming that the company was required to allow the proposed protected action ballot to proceed.

Australian Federation of Air Pilots v Lloyd Helicopters Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established