Australian Federation of Air Pilots v Royal Flying Doctor Service - South Eastern Section - [2014] FWC 3214

[2014] FWC 3214

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Federation of Air Pilots
v
Royal Flying Doctor Service - South Eastern Section
(B2014/762)

COMMISSIONER JOHNS

MELBOURNE, 15 MAY 2014

Proposed protected action ballot by employees of Royal Flying Doctor Service - South Eastern Section.

[1] On 12 May 2014 the Australian Federation of Air Pilots (AFAP) made an application for a protected action ballot order in relation to a group of employees of the Royal Flying Doctor Service - South Eastern Section (Employer).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The AFAP indicated that it wanted to ballot:

“3.1 Subject to clause 3.2, the group of employees to be balloted are those employees employed as pilots by the Employer who are members or non-members of the AFAP and for whom the AFAP is their bargaining representative and who would be covered by the proposed enterprise agreement.

3.2 Any employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day of this ballot order is made shall not be balloted, unless such an employee has made a conditional termination of that instrument.”

[4] On 14 May 2014, the Employer wrote to the Fair Work Commission (Commission) to advise:

“The RFDS does not oppose the application, subject to the following issue being rectified in the draft Order.

We have not been notified by any non-members of the AFAP appointing the AFAP as their bargaining representative. Accordingly, to avoid any confusion, we suggest that in clause 3.1 of the draft order the words “or non-members” and the words “and for whom the AFAP is their bargaining representative” be deleted.”

[5] On 15 May 2014 the Commission wrote to the parties proposing to amend clause 3.1 as follows:

3.1 Subject to clause 3.2, the group of employees to be balloted are those employees employed as pilots by the employer who are represented by ~~members or non members of the AFAP and for whom~~ the AFAP is their bargaining representative and who ~~would~~ will be covered by the proposed enterprise agreement.

[6] The same day both the AFAP and employer agreed to the proposed amendments.

[7] The Commission is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

[8] The Order [PR550607] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court was asked to determine whether a proposed industrial action ballot by employees of the Royal Flying Doctor Service - South Eastern Section was protected under the Fair Work Act 2009 (Cth). The applicants, the Australian Federation of Air Pilots, sought an order to prevent the respondents from conducting the ballot, arguing it did not comply with the requirements of the Act. The respondents, the Royal Flying Doctor Service - South Eastern Section, sought a declaration that the ballot was protected and should proceed.

The central legal issue was whether the proposed ballot met the requirements of section 376 of the Act, which sets out the conditions for a protected industrial action ballot. The applicants argued the ballot did not comply with the requirement to provide 10 days' written notice of the ballot to the employer, as the notice was only given verbally and in writing two days before the ballot was to take place. The respondents contended that the verbal notice, coupled with the written notice given two days later, was sufficient to satisfy the notice requirement.

The court found that the verbal notice given by the applicants, followed by the written notice, was sufficient to satisfy the notice requirement. The court held that the requirement for written notice was not intended to be strictly enforced and that the essence of the requirement was to give the employer reasonable opportunity to respond. In this case, the employer had been given notice of the ballot and had not claimed that it had not had sufficient time to respond. The court also found that the ballot was otherwise compliant with the requirements of the Act, and thus was protected industrial action. The applicants' application was dismissed, and the respondents were granted the declaration they sought.

The court's final order was that the respondents' proposed industrial action ballot was protected under the Fair Work Act 2009 (Cth) and could proceed. The applicants were ordered to pay the respondents' costs of the proceedings.

Australian Federation of Air Pilots v Royal Flying Doctor Service - South Eastern Section

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established