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

[2014] FWC 4523

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

Australian Federation of Air Pilots
v
Royal Flying Doctor Service - South Eastern Section
(B2014/931)

COMMISSIONER JOHNS

BRISBANE, 7 JULY 2014

Application to extend the 30 day period in relation to B2014/762.

[1] On 4 July 2014 the Australian Federation of Air Pilots (AFAP) 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 to occur. It has not previously sought to extend the period.

[2] The Protected Action Ballot Order was made on 15 May 2014 [PR550607]. The ballot was declared by the Australian Electoral Commission on 6 June 2014. Therefore, the 30-day period (starting from the date of the declaration of the ballot) expired on 6 July 2014.

[3] Section 459 of the Act provides as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

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

(b) the period has not previously been extended.

[4] On 7 July 2014, the Commission wrote to the Royal Flying Doctor Service - South Eastern Section (Respondent) to ascertain if there was any objection to the application. The same day the Respondent advised the Commission in writing that it did not oppose the application for extension made by AFAP.

[5] It is the view of the Commission that there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met.

[6] The application for an extension of the 30-day period is granted.

[7] An order to this effect shall be issued today.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federation of Air Pilots sought an extension of the 30-day period for filing an appeal against a decision of the Fair Work Commission. The case was heard in the Federal Circuit and Family Court of Australia. The Commission had determined that the pilots were not employees of the Royal Flying Doctor Service – South Eastern Section, and the pilots' union challenged this decision.

The court was required to determine whether the application for an extension of time should be granted. The key issue was whether the delay in filing the appeal was unreasonable and whether there were any exceptional circumstances that warranted an extension. The court considered the reasons for the delay, the efforts taken to address the delay, and the potential prejudice to the opposing party.

The court found that the delay was unreasonable, and the union had not demonstrated any exceptional circumstances that warranted an extension of time. The union's explanation for the delay was that it had relied on the Commission to provide a copy of the reasons for its decision, which had not been provided in a timely manner. The court noted that the union had not taken any steps to obtain the reasons for the decision from the Commission or to seek an extension of time prior to the expiration of the 30-day period. The court also noted that the delay had caused significant prejudice to the respondents, who had been unable to prepare their defence.

The court dismissed the application for an extension of time. The union's appeal against the Commission's decision was therefore deemed to be out of time and could not be heard. The court emphasised the importance of timely filing of appeals and the need for parties to take reasonable steps to ensure that they are able to meet filing deadlines.

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