“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Eastern Australia Airlines Pty Limited

[2022] FWC 3072

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

Eastern Australia Airlines Pty Limited

(B2022/1736)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 NOVEMBER 2022

Proposed protected action ballot of employees of Eastern Australia Airlines Pty Limited

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Eastern Australia Airlines Pty Limited (Respondent).

On 17 November 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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 statutory declaration of Helen Sourlas of the Applicant declared on 17 November 2022, 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.

An Order has been separately issued in PR748081.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order allowing them to conduct a ballot of certain employees of Eastern Australia Airlines Pty Limited. The AMWU sought this order to facilitate protected industrial action, indicating that they had been attempting to negotiate with the airline without success. The airline did not oppose the application, and the matter was decided by the Vice President Catanzariti on 18 November 2022, based on the written submissions and without a hearing.

The central legal issue before the court was whether the AMWU had satisfied the conditions set out in section 437 of the Fair Work Act to conduct a protected action ballot. Specifically, the court had to determine whether the union had genuinely attempted to negotiate with the airline and whether the requisite notification period had elapsed. The union argued that it had fulfilled these requirements, and the airline did not contest the application, leaving the court to review the union's assertions based on the provided materials.

The Vice President Catanzariti examined the statutory declaration by Helen Sourlas of the AMWU, which detailed the union's efforts in bargaining with the airline and its ongoing attempts to reach an agreement. The Vice President was satisfied that the union had indeed been genuinely trying to negotiate and that the statutory notification period had been met, as per section 443(1) of the Act. Consequently, the Vice President granted the union's application for a ballot order.

An order was issued separately in PR748081, allowing the AMWU to proceed with the ballot for the proposed protected action among the employees of Eastern Australia Airlines Pty Limited.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established