Australian Federation of Air Pilots v Toll Remote Logistics Pty Ltd T/A Toll Helicopters

[2023] FWC 431

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Federation of Air Pilots
v

Toll Remote Logistics Pty Ltd T/A Toll Helicopters

(B2023/126)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 FEBRUARY 2023

Proposed protected action ballot of employees of Toll Remote Logistics Pty Ltd T/A Toll Helicopters

This is an application by the Australian Federation of Air Pilots (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Toll Remote Logistics Pty Ltd T/A Toll Helicopters (Respondent).

On 20 February 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.

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 statutory declaration of David Stephens of the Applicant declared on 17 February 2023, 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 PR750966.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federation of Air Pilots (Applicant) sought a protected action ballot order in relation to certain employees of Toll Remote Logistics Pty Ltd T/A Toll Helicopters (Respondent) under section 437 of the Fair Work Act 2009. The application was made to the Fair Work Commission, which decided to determine the matter without holding a hearing because the Respondent did not oppose the application. The Commission was satisfied that the notification time for the proposed agreement had been met and that the requirements of section 443(1) of the Act were fulfilled based on the material before it, including a statutory declaration from the Applicant.

The central legal issue before the Commission was whether the requirements for a protected action ballot under section 437 of the Act had been met. This required the Commission to assess if the notification time had elapsed and if the Applicant had genuinely attempted to reach an agreement with the Respondent. The Commission had to consider the statutory declaration from the Applicant and any other relevant material to determine if the prerequisites for the ballot were satisfied. The Respondent's lack of opposition to the application also influenced the Commission's decision-making process.

The Fair Work Commission concluded that the notification time had passed and that the Applicant had genuinely tried to reach an agreement with the Respondent, fulfilling the statutory requirements. As a result, the Commission granted the Applicant's application for a protected action ballot order. The decision was made without a hearing, considering the Respondent's non-opposition and the material provided by the Applicant. The Commission's order was issued separately, and the matter was concluded with the grant of the requested ballot order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established