Australian Federation of Air Pilots v Surveillance Australia Pty Ltd

[2024] FWC 1045

[2024] FWC 1045

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Applications for a protected action ballot order

Australian Federation of Air Pilots
v

Surveillance Australia Pty Ltd

(B2024/458)

Transport Workers’ Union of Australia
v

Surveillance Australia Pty Ltd

(B2024/460)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 22 APRIL 2024

Proposed protected action ballots of employees of Surveillance Australia Pty Ltd

1. The Australian Federation of Air Pilots (AFAP) and the Transport Workers’ Union (TWU) have each made applications under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Surveillance Australia Pty Ltd[1] (Surveillance Australia or Employer). 

1. On 19 April 2023, the Commission was advised that Surveillance Australia did not object to the application, however it did seek an extended period of notice of industrial action. Further, it initially raised concerns with some of the proposed ballot questions; however, these concerns were not ultimately pressed as a basis of objection to either application.

1. In the circumstances, on 22 April 2024 I convened a hearing to deal with both applications. During the hearing, the parties advised that based upon evidence[2] that had been provided by Surveillance Australia, a consent position had been reached in terms of the extent of notice of industrial action.

1. On the basis of the material before me, including the declarations of Simon Lutton, Executive Director of the AFAP, and Edward Nell, National Industrial Officer TWU, setting out the steps taken by the AFAP and the TWU in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with Surveillance Australia, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

1. The ballot in each matter is to be conducted by TrueVote Pty Ltd. TrueVote has been approved[3] as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close in each matter is 9 May 2024.[4] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of five (5) working days written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Orders made by the Commission.

1. The Commission has also adopted the standard preamble to the ballot questions in each Order.

1. Orders have been separately issued in PR773792 (AFAP) and PR773793 (TWU).

1. These matters will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an order requiring the attendance of all bargaining representatives for the proposed agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Surveillance Australia trades as Leidos Australia Airborne Services.

[2] A Statement of Jesse Young, head of Flight Operations with Surveillance Australia – exhibit 1.

[3] TrueVote Pty Ltd [2023] FWC 1446.

[4] This is, in effect, 12 working days (17 calendar days) from the making of the Orders, considering the impact of the Anzac Day Public Holiday as discussed with the parties.

Printed by authority of the Commonwealth Government Printer

<PR773794>