Australian Municipal, Administrative, Clerical and Services Union v Dnata Airport Services Pty Ltd

[2022] FWC 2241

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v

Dnata Airport Services Pty Ltd

(B2022/1266)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 AUGUST 2022

Proposed protected action ballot of employees of dnata Airport Services Pty Ltd.

This is an application by the Australian Municipal, Administrative, Clerical and Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Dnata Airport Services Pty Ltd (the Respondent).

The Respondent initially advised my Chambers that it did not object to the protected action ballot order being made granted the Applicant would be willing to consent to an extension of the notice period required for the taking of industrial action to greater than 3 working days (subject to the Commission being satisfied it is appropriate to extend the notice period). In correspondence to my Chambers, the Applicant confirmed that it consented to an extension of the notice period required for the taking of industrial action from 3 working days to 5 working days.

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 declaration of Mr Victor Jose of the Applicant 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. I am also satisfied based on the position of the parties and the material before me that the period of written notice referred to in s.414(2)(a) of the Act should be longer than 3 working days and that I should exercise the discretionary power in s.443(5) of the Act and specify a period of at least 5 working days.

An order has been separately issued in PR745078.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Municipal, Administrative, Clerical and Services Union (Applicant) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning specific employees of Dnata Airport Services Pty Ltd (Respondent). The application was heard by Deputy President Clancy of the Fair Work Commission in Melbourne on August 23, 2022. The Respondent did not object to the protected action ballot order, provided the Applicant consented to an extension of the notice period required for the taking of industrial action from 3 working days to 5 working days. The Applicant confirmed their consent in correspondence to the Deputy President's Chambers, and the matter was determined on the papers without holding a hearing.

The legal issues before the court were whether there was a notification time in relation to the proposed agreement, if the requirements in section 443(1) of the Act had been met, and whether the period of written notice should be longer than 3 working days. The Deputy President was satisfied, based on the position of the parties and the material before him, that the notification time existed, the requirements in section 443(1) of the Act had been met, and that the period of written notice should be at least 5 working days. The Deputy President exercised the discretionary power in section 443(5) of the Act to specify this period.

The court issued an order separately in PR745078, granting the protected action ballot order with the specified notice period of at least 5 working days. The Deputy President's decision was based on the Applicant's declaration by Mr Victor Jose, setting out the steps taken in bargaining with the Respondent, and the confirmation that the Applicant had been genuinely trying to reach agreement with the Respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established