Australian Workers' Union v Qantas Airways Limited

[2024] FWC 2169

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers’ Union
v

Qantas Airways Limited

(B2024/1034)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 16 AUGUST 2024

Proposed protected action ballot of employees of Qantas Airways Limited

This is an application by the Australian Workers’ Union (AWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Qantas Airways Limited (Qantas or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 15 August 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended following discussions between the parties. Those discussion involved the parties reaching a consent position to amend the questions in the Order.

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 Marina Chambers, Organiser, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Qantas, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 30 August 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR778348.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Respectively, B2024/1032 and B2024/1033.

[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (AWU) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to specific employees of Qantas Airways Limited. The application was heard by Deputy President Hampton in Adelaide on August 16, 2024. The AWU sought to conduct a ballot for proposed protected actions in relation to an enterprise agreement. The Australian Manufacturing Workers’ Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia also made separate applications for ballot orders regarding the same proposed agreement. The court noted that Qantas did not object to the AWU's application after discussions between the parties led to a consensus on amending the ballot questions.

The legal issues before the court involved whether the AWU had fulfilled the necessary requirements to conduct a protected action ballot under section 443 of the Fair Work Act. The court had to determine if the AWU had genuinely tried to reach an agreement with Qantas, and if all procedural requirements for a ballot had been satisfied. The application was based on a declaration by Marina Chambers, an organiser for the AWU, who outlined the union's bargaining efforts with Qantas.

The court concluded that the AWU had genuinely attempted to reach an agreement with Qantas and that all the conditions under section 443(1) of the Act were met. The court was satisfied with the AWU's efforts and approved the conduct of the ballot by Democratic Outcomes Pty Ltd, an authorised ballot agent. The Deputy President set the closing date for voting at August 30, 2024, effectively establishing the ballot period. The matter will proceed to a compulsory conciliation conference, where all bargaining representatives will be required to attend and engage in meaningful negotiations. The conference will be overseen by another member of the Commission, who will issue necessary directions to facilitate the process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established