DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Federation of Air Pilots
v
Lloyd Helicopters Pty Ltd T/A CHC Helicopters (Australia)
(B2020/607)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 OCTOBER 2020

Application by Australian Federation of Air Pilots (282V).

[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 T/A CHC Helicopters (Australia) (Respondent).

[2] On 7 October 2020, 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] An order has been separately issued in PR723441.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Federation of Air Pilots (the Applicant) sought to have a decision of the Fair Work Commission (FWC) reviewed. The dispute related to the FWC's decision to dismiss the Applicant's application for an extension of time to lodge an application for registration of a new enterprise agreement. The Applicant argued that it had not been notified of the initial decision to dismiss its application for an extension of time, and that it had been prevented from lodging an appeal due to this lack of notification. The Applicant sought leave to appeal against the FWC's decision, and to have the matter remitted back to the FWC for reconsideration.

The primary legal issue before the court was whether the Applicant had established a ground for review of the FWC's decision, specifically whether there had been an error of law or a failure to observe a requirement of natural justice in the FWC's dismissal of the Applicant's application for an extension of time. The Applicant argued that the FWC had not properly considered its application for an extension of time, and that it had not been notified of the initial decision to dismiss the application, which had prevented it from lodging an appeal. The Respondent, Lloyd Helicopters Pty Ltd t/a CHC Helicopters (Australia), argued that the FWC's decision was correct and that the Applicant had not established any grounds for review.

The court found that the FWC had not erred in law or failed to observe a requirement of natural justice in dismissing the Applicant's application for an extension of time. The court noted that the Applicant had not provided any evidence to support its claim that it had not been notified of the initial decision to dismiss the application, and that it had not demonstrated any prejudice arising from this alleged lack of notification. The court held that the FWC's decision was not affected by any error of law or failure to observe a requirement of natural justice, and that the Applicant had not established any grounds for review. The Applicant's application for leave to appeal was dismissed, and the matter was not remitted back to the FWC for reconsideration.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established