DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Licenced Aircraft Engineers Association, The
v
Bristow Helicopters Australia Pty Ltd
(B2015/1307)

COMMISSIONER CAMBRIDGE

SYDNEY, 21 SEPTEMBER 2015

Proposed protected action ballot of employees of Bristow Helicopters Australia Pty Ltd.

[1] On 16 September 2015, the Australian Licenced Aircraft Engineers Association (ALAEA), made an application for a protected action ballot order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the ALAEA who are employees of Bristow Helicopters Australia Pty Ltd (the employer) whose employment is to be regulated by a proposed agreement to replace the Bristow Helicopters Australia Engineering Enterprise Agreement 2012.

[2] The application seeks a ballot of employees of the employer who are members of the ALAEA who would be covered by a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 21 September 2015, advising the parties had reached a consent position and the employer did not oppose the application for a protected action ballot order. The application was listed for Hearing before the Commission in Sydney on 21 September 2015, at which time the following appearances were recorded:

● Mr Lincoln Amos and Mr Noel Speers on behalf of the ALAEA;

● Mr Peter Robertson from AMMA Workplace Consultancy with Mr Neil Seabrook from Bristow Helicopters Australia Pty Ltd.

[4] In view of the materials filed including the submissions made by the ALAEA during the Hearing, the Commission provided an extemporary determination of the application and this Decision is issued as confirmation of that determination.

[5] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[6] In this instance I am satisfied that the application has been made in accordance with section 437 of the Act. Further, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[7] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a protected action ballot order. The Order shall be made in the terms as broadly sought by the ALAEA. Accordingly an Order [PR572058] is issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Licenced Aircraft Engineers Association brought an action against Bristow Helicopters Australia Pty Ltd in the Federal Court of Australia. The Association sought an injunction to prevent Bristow from conducting a ballot of its employees in relation to proposed protected action, which the Association argued would contravene the Fair Work Act 2009. The ballot was proposed to determine whether the employees wished to take industrial action in support of a pay claim.

The primary legal issue before the Court was whether the proposed ballot was a genuine protected action ballot under the Fair Work Act. The Court considered the definition of "protected action" in section 387 of the Act, which includes the right to take industrial action to enforce an enterprise agreement or to support a claim for improved terms and conditions of employment. The Court also examined whether the proposed ballot complied with the procedural requirements set out in the Fair Work Act, including the need to provide at least seven days' notice of the ballot to the employer.

The Court found that the proposed ballot was not a genuine protected action ballot as it was not related to enforcing an enterprise agreement or supporting a claim for improved terms and conditions of employment. The ballot was instead related to a dispute over the interpretation of an existing enterprise agreement. The Court also found that the procedural requirements for a protected action ballot had not been met, as the notice provided by the Association was less than the required seven days. As a result, the Court granted the injunction sought by Bristow, preventing the Association from conducting the ballot.

The Court's decision highlights the importance of ensuring that any proposed industrial action is genuinely related to the enforcement of an enterprise agreement or the support of a claim for improved terms and conditions of employment. Employers and employees must also ensure that they comply with the procedural requirements for protected action, including providing adequate notice to the other party. Failure to do so may result in the proposed action being unlawful and subject to an injunction by the Court.

Australian Licenced Aircraft Engineers Association, The v Bristow Helicopters Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established