Australian Federation of Air Pilots v Sunstate Airlines (Qld Pty Ltd)

[2023] FWC 2803

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

Sunstate Airlines (QLD Pty Ltd)

(B2023/1158)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 25 OCTOBER 2023

Application to extend the 30 day period in relation to B2023/880

This matter concerns the declaration of the result of a protected action ballot (PR765555) held in matter B2023/880 and declared on 25 September 2023.

The Australian Federation of Air Pilots (AFAP or Applicant) 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.

Sunstate Airlines (QLD Pty Ltd) (the Respondent) has advised the Commission it has no objection to this 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 Sunstate Airlines (QLD Pty Ltd) be extended by a further 30 days.

This order will operate on and from 25 October 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Federation of Air Pilots (AFAP) applied for an extension of the 30-day period for commencing industrial action that was authorised by a protected action ballot. The application was made against Sunstate Airlines (Qld Pty Ltd). The ballot, PR765555, was declared on 25 September 2023 in relation to matter B2023/880. The Respondent, Sunstate Airlines, did not object to the application.

The legal issue before the Deputy President was whether the requirements under section 459(3) of the Fair Work Act 2009 had been met to permit an extension of the 30-day period. The relevant section of the Act allows for such an extension if the applicant has applied to the Fair Work Commission and if the period has not previously been extended. The applicant contended that both conditions had been satisfied. The Deputy President found that the requirements were indeed met and that the application should be granted.

The Deputy President considered the provisions of the Act and the facts of the case. The applicant had met all the criteria stipulated in section 459(3). Given the Respondent's lack of objection, the Deputy President concluded that the application should be approved. The decision was made in favour of the applicant, and the 30-day period was extended by a further 30 days. This extension took effect from 25 October 2023.

CaseChat Overview and Summary

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Background to the litigation

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