Australian Federation of Air Pilots v Toll Transport Pty Ltd

[2023] FWC 814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 —Protected action

Australian Federation of Air Pilots
v

Toll Transport Pty Ltd

(B2023/302)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 APRIL 2023

Application to extend the 30 day period in relation to B2023/126

On 31 March 2023, the Australian Federation of Air Pilots (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR750966 made on 21 February 2023. The Order applies to certain employees of Toll Transport Pty Ltd (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 7 March 2023. Pursuant to s. 459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 5 April 2023.

On 3 April 2023, the Respondent advised the Commission via email that it does not oppose the Australian Federation of Air Pilots’ application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the Australian Federation of Air Pilots who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on ‎5‎ ‎April‎ ‎2023, the extension period will operate from ‎5‎ ‎April‎ ‎2023.

An order has been separately issued in PR760868.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federation of Air Pilots (Applicant) applied to the Fair Work Commission for an extension of the 30-day period for protected action authorised by a protected action ballot order. The order, PR750966, was made on 21 February 2023 and applies to certain employees of Toll Transport Pty Ltd (Respondent). The ballot result, declaring a majority endorsement of proposed forms of protected industrial action, was declared on 7 March 2023. As a result, the 30-day period for protected action started on the same day and was set to expire on 5 April 2023. The Respondent did not oppose the application for an extension.

The legal issue before the Commission was whether the 30-day period for protected action could be extended under section 459(3) of the Fair Work Act 2009. The Act allows for the extension of the period if certain requirements are met. The Commission had to determine whether the Applicant met those requirements and whether an extension was appropriate. The key point was that the 30-day period had not been previously extended.

The Commission found that the Applicant had met all the requirements of section 459 of the Act. Since the 30-day period was set to expire on 5 April 2023, the extension would commence from that date. The Commission was satisfied with the material presented and decided that the extension was appropriate.

An order was issued in PR760868, extending the 30-day period for protected action from 5 April 2023.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established