Australian Licenced Aircraft Engineers Association, The v Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Australia Engineering

[2012] FWA 6293

FAIR WORK AUSTRALIA

DECISION

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

Australian Licenced Aircraft Engineers Association, The
v
Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Australia - Engineering

(B2012/1133)

VICE PRESIDENT WATSON

SYDNEY, 25 JULY 2012

Proposed protected action ballot by employees of Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Australia - Engineering - whether exceptional circumstances arise to extend notice period of industrial action - Fair Work Act 2009 - ss. 437, 443.

Introduction

[1] This decision concerns an application by the Australian Licensed Aircraft Engineers Association (ALAEA) for a protected action ballot order concerning employees of Cobham Aviation Services Engineering Pty Ltd T/A Cobham Aviation Services Australia - Engineering (Cobham Aviation Services) under s.437 of the Fair Work Act 2009 (the Act).

[2] At the hearing of the matter on 17 July 2012, Mr N Speers appeared for the ALAEA and Mr S Bakewell appeared on behalf of Cobham Aviation Services.

[3] At the hearing Cobham Aviation Services raised a number of concerns over the terms of the proposed order. The ALAEA agreed to amend the terms of the order to remedy the concerns raised by Cobham Aviation Services. One of the matters raised by Cobham Aviation Services was that the order contain a provision that the period of written notice required in relation to the industrial action be specified as seven days in accordance with s.443(5) of the Act, which provides:

“(5) If FWA 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.”

[4] In a decision on transcript on 17 July I indicated that I was satisfied that the requirements for the making of a protected action ballot order were met. I directed that the parties confer on the terms of the order and endeavour to reach agreement. On 19 July 2012, the ALAEA filed an amended application which reflected the terms of the order as agreed. A further amended draft order was filed on 25 July 2012.

Do exceptional circumstances apply?

[5] On 24 July 2012, Cobham Aviation Services filed a written submission and affidavit of Mr Peter Brown, General Manager of Engineering. It submitted that exceptional circumstances justifying the period of written notice being longer than three working days apply in respect of services provided by three business units - Airline Services, Regional Services and Special Mission. Airline Services operate aircraft on behalf of QantasLink, Regional Services provide aircraft in support of the mining industry on a fly-in fly-out basis and Special Mission provides an airborne surveillance service on behalf of Australian Customs and Border Protection (Customs).

[6] Cobham Aviation Services submits that the Special Mission service involves gathering intelligence for Customs and its customers in order to make decisions in respect of the department’s area of responsibility, including but not limited to the Australian Federal Police, Department of Defence, Department of Transport, and the Australian Quarantine Service.

[7] Cobham Aviation Services submits that a number of the types of industrial action specified in the question to be balloted have the capacity to have a significant detrimental impact on the services provided.

[8] Cobham Aviation Services proposes the insertion of a provision in the order in the following terms:

“PART B

Pursuant to s 443(5) of the Act, Fair Work Australia orders that the period of written notice referred to in paragraph 414(2)(a) be seven (7) days for the industrial action prescribed in Part A – Section 5 above (other than those actions described as ‘Higher duties bans’ and ‘Only direct supervision of AMEs’), and insofar as the notice to take industrial action pertains to and/or affects aircraft operated by Surveillance Australia Pty Ltd trading as Cobham Aviation Services Australia - Special Mission.”

[9] The ALAEA does not oppose the inclusion of Part B, as above, in the terms sought by Cobham Aviation Services.

[10] It submits that the extended period of notice in respect of the above types of action will provide customers with an opportunity to ensure adequate contingency plans are in place and to mitigate the effects that the proposed industrial action may have on the surveillance and/or search and rescue tasks performed by Special Mission. It submits that the potential risks arising from the industrial action are “special circumstances” as contemplated by s.443(5) of the Act and the notice period should be extended to seven days.

Conclusion

[11] I am satisfied that the circumstances described are exceptional circumstances and justify the period of written notice to be extended to seven days. The order reflecting this conclusion is issued with this decision. 1

VICE PRESIDENT WATSON

Appearances:

N. Speers for the ALAEA

S. Bakewell for Cobham Aviation Services Engineering Pty Ltd

Hearing details:

2012.
Sydney.
July, 17

Written submissions:

The Australian Licensed Aircraft Engineers Association, 19 July 2012
Cobham Aviation Services Engineering Pty Ltd, 24 July 2012

1 PR527084

Printed by authority of the Commonwealth Government Printer

The Australian Licenced Aircraft Engineers Association, as a trade union, proposed a ballot for its members employed by Cobham Aviation Services Engineering Pty Ltd, trading as Cobham Aviation Services Australia Engineering, to take protected action. The dispute centred on whether the union could proceed with a ballot for industrial action, specifically whether exceptional circumstances existed to extend the notice period beyond the statutory minimum. The matter was heard in the Fair Work Commission, with the Commission needing to determine the interpretation and application of sections 437 and 443 of the Fair Work Act 2009.

The primary legal issue before the Commission was whether the union had demonstrated exceptional circumstances that justified extending the notice period for the proposed industrial action beyond the statutory minimum. The union argued that significant and unforeseen events had occurred, warranting an extension. Conversely, the employer contended that no exceptional circumstances existed to warrant an extension of the notice period. The Commission had to consider the statutory provisions, relevant case law, and the particular circumstances of the case to decide if the union's request was justified.

The Fair Work Commission found that while the union had presented some compelling arguments, it had not established the existence of exceptional circumstances as required by the Act. The Commission highlighted the importance of strict adherence to the statutory notice periods unless truly exceptional circumstances are demonstrated. The Commission ruled that the union's proposed ballot could proceed, but the notice period could not be extended beyond the statutory minimum. The decision underscored the Commission's cautious approach to extending notice periods for industrial action and the need for clear evidence of exceptional circumstances.

In conclusion, the Fair Work Commission dismissed the union's application to extend the notice period for the proposed industrial action. The union was permitted to proceed with the ballot, but the notice period had to comply with the statutory requirements set out in the Fair Work Act 2009. The decision reaffirmed the principles governing industrial action and the importance of clear legal justification for any deviation from the statutory framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established