Australian Federation of Air Pilots v Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia) Summary

[2023] FWC 1852

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Australian Federation of Air Pilots
v

Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia)

(B2023/755)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 27 JULY 2023

Application to extend the 30 day period in relation to B2023/575

This matter concerns the declaration of the result of a protected action ballot (PR763147) held in matter B2023/575and declared on 30 June 2023.

The Australian Federation of Air Pilots (AFAP) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application made by the AFAP contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia) has advised the Commission that it neither consents to, or opposes the application.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible AFAP members employed by Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia) be extended by a further 30 days.

This order will operate on and from 27 July 2023.

DEPUTY PRESIDENT

CaseChat Overview and Summary

The Fair Work Commission dealt with an application from the Australian Federation of Air Pilots (AFAP) to extend the 30-day period for commencing industrial action authorised by a protected action ballot against Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia). The Commission was required to determine whether the application met the statutory criteria for an extension under section 459(3) of the Fair Work Act 2009. The AFAP applied for an extension on the basis that the statutory requirements were satisfied, and Lloyd Helicopters neither consented to nor opposed the application. The Commission's task was to assess the application's compliance with the Act and decide whether the extension should be granted.

The legal issue before the Commission was whether the statutory conditions for extending the 30-day period for industrial action, as outlined in section 459(3) of the Fair Work Act 2009, had been met. Section 459(3) allows for an extension of the 30-day period if the applicant for the protected action ballot order applies for the extension and if the period has not been previously extended. The AFAP argued that all the criteria were fulfilled and that the extension should be approved. The Commission had to consider the application in light of these statutory provisions and the circumstances of the case.

After examining the application and the relevant statutory provisions, the Deputy President concluded that the AFAP's application met the conditions for an extension under section 459(3) of the Fair Work Act 2009. The Deputy President was satisfied that the AFAP had applied for the extension and that the 30-day period had not been extended previously. Consequently, the Deputy President granted the application, ordering that the 30-day period for the commencement of protected industrial action for eligible AFAP members employed by Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia) be extended by a further 30 days. This decision was made on 27 July 2023, and the order came into effect from the same date.

Australian Federation of Air Pilots v Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established