Australian Federation of Air Pilots v Regional Express Holdings Limited

[2022] FWC 1443

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Federation of Air Pilots

Regional Express Holdings Limited

(B2022/537)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 JUNE 2022

Proposed protected action ballot of employees of Regional Express Holdings Limited

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 Regional Express Holdings Limited (the Respondent).

On 7 June 2022, my Associate was advised that the Respondent objected to the application. However, later that day the parties were able to reach a consent position.

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

On the basis of the material before me, including the declaration of Mr James Mattner 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.

An order has been separately issued in PR742432.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federation of Air Pilots applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Regional Express Holdings Limited. The dispute arose from negotiations between the parties regarding an enterprise agreement, with the union seeking to ballot its members to determine whether they should take protected action in pursuit of their bargaining objectives. The Fair Work Commission, under the Fair Work Act 2009, was tasked with deciding whether the union had met the necessary criteria to conduct such a ballot. The Commission was required to assess whether the union had genuinely attempted to reach an agreement with the employer and whether a notification period for the proposed agreement had been met.

The legal issues before the Commission included whether the union had genuinely been attempting to reach an agreement with the employer and whether the union had satisfied the notification time requirement for the proposed agreement. The union's application was supported by a declaration from Mr James Mattner, who stated that the union had been genuinely trying to reach agreement with the employer and had taken all necessary steps in the bargaining process. The Commission needed to determine if the union's actions met the statutory criteria and if the union had fulfilled the conditions for conducting a protected action ballot.

The Commission found that the union had genuinely been attempting to reach an agreement with the employer and had satisfied the notification time requirement. The evidence presented, including Mr Mattner's declaration and the union's bargaining efforts, demonstrated that the union had met the necessary criteria. Consequently, the Commission was satisfied that the requirements of the Fair Work Act had been met, and it proceeded to grant the union's application. The decision was made on the papers without a hearing, as the parties had reached a consent position. The Fair Work Commission issued an order permitting the union to conduct the protected action ballot as requested.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established