David John Paddle v Airservices Australia Summary

[2024] FWC 992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

David John Paddle
v

Airservices Australia

(B2024/442)

DEPUTY PRESIDENT HAMPTON

SYDNEY, 16 APRIL 2024

Proposed protected action ballot of employees of Airservices Australia

This is an application by David John Paddle (Mr Paddle 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 Airservices Australia (Airservices or Employer).

I note that the Civil Air Operations Officers Association of Australia have made a separate application for a protected action ballot order in relation the same proposed agreement.[1]

On 15 April 2024, the Respondent advised that it did not object to the application subject to there being an extended notice period of seven (7) working days in relation to the proposed forms of industrial action. This was subsequently agreed by Mr Paddle.

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 Paddle, Air Traffic Controller, setting out the steps taken by Paddle in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with them, 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 the Australian Electoral Commission (AEC).

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 31 May 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I observe that on 16 April 2024, the Commission consulted with the parties in relation to the form of certain proposed questions in the draft order. The Applicant subsequently consented to the deletion of the above questions and no objection was raised by the Respondent.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of seven (7) working days applies to all items listed within Clause five (5) of the Order.

An Order has been separately issued in PR773546.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives for 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] B2024/391.

[2] This is, in effect, 31 working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of David John Paddle v Airservices Australia involves an application made under section 437 of the Fair Work Act 2009 for a protected action ballot order. The applicant, David John Paddle, sought to organise a ballot for certain employees of Airservices Australia. The Civil Air Operations Officers Association of Australia also filed a separate application concerning the same proposed agreement. The application was not contested by Airservices Australia, although they did request an extended notice period for the proposed industrial action. This request was subsequently agreed upon by Mr Paddle.

The key legal issue the Fair Work Commission had to address was whether the requirements for a protected action ballot under section 443 of the Act were met. This includes confirming that the applicant had genuinely attempted to reach an agreement with the employer and that all procedural requirements were satisfied. The Commission had to consider the proposed agreement, the steps taken in negotiations, and the implications of the extended notice period. Additionally, the Commission needed to determine a suitable closing date for the ballot, which was set for 31 May 2024. The Commission also had to consult with the parties regarding the form of certain questions in the draft order and resolve any objections.

The Fair Work Commission, Deputy President Hampton, concluded that the applicant had genuinely attempted to reach an agreement and that all procedural requirements for a protected action ballot had been met. The extended notice period of seven working days was deemed appropriate, and the closing date for the ballot was set as 31 May 2024. The Commission approved the deletion of certain proposed questions in the ballot order following consultations with the parties, and no objections were raised by Airservices Australia. The Commission also determined that there were exceptional circumstances justifying the extended notice period as required by section 443(5) of the Act.

The final order established the procedures for the ballot to be conducted by the Australian Electoral Commission and outlined the terms for the extended notice period. Another member of the Commission was assigned to conduct a compulsory conciliation conference to facilitate meaningful negotiations between the parties. Directions were likely to be issued to ensure the parties attended the conference prepared to negotiate.

David John Paddle v Airservices Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established