Flight Attendants' Association of Australia v Network Aviation Pty Ltd T/A Network Aviation Australia

[2023] FWC 1609

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Flight Attendants' Association of Australia
v

Network Aviation Pty Ltd T/A Network Aviation Australia

(B2023/665)

DEPUTY PRESIDENT O'KEEFFE

PERTH, 3 JULY 2023

Proposed protected action ballot of employees of Network Aviation Pty Ltd

This is an application by the Flight Attendants' Association of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Network Aviation Pty Ltd T/A Network Aviation Australia (Respondent).

On 30 June 2023 the Respondent advised that it objected to the application. Accordingly a hearing was scheduled for 3 July 2023 in relation to the objection. Prior to the scheduled hearing on 3 July 2023, the Applicant provided an amended F34 application form, along with an amended draft order. The Respondent advised that it no longer pressed an objection to the application and was content for the Commission to determine the application in accordance with the Act. The hearing was therefore vacated.

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 Gareth Uren of the Applicant setting out the steps taken by it in bargaining with the Respondent, I am satisfied that that the requirements in s.443(1) of the Act have been met in that the Applicant has been, and is, genuinely trying to reach agreement with the Respondent.

I am also satisfied that there is a notification time in relation to the proposed agreement.

The person proposed in the application as the protected action ballot agent is the Australian Electoral Commission (AEC).

I therefore appoint the AEC as the protected action ballot agent.

An order has been separately issued in PR763862.

DEPUTY PRESIDENT

CaseChat Overview and Summary

The Flight Attendants' Association of Australia sought a protected action ballot order from the Fair Work Commission against Network Aviation Pty Ltd T/A Network Aviation Australia. This application was pursuant to section 437 of the Fair Work Act 2009. Network Aviation initially objected to the application, necessitating a hearing on 3 July 2023. However, prior to the hearing, Network Aviation withdrew its objection, and the hearing was subsequently vacated. The matter was determined on the papers, and the Deputy President, O'Keeffe, found that the Association had met the requirements of section 443(1) of the Act by demonstrating genuine efforts to reach an agreement with Network Aviation.

The primary legal issues for the Deputy President to decide were whether the Association had genuinely attempted to reach an agreement with Network Aviation and whether there was a notification period for the proposed agreement. The Deputy President found that the Association had indeed made genuine efforts to reach an agreement and that there was a notification period for the proposed agreement. Consequently, the Deputy President appointed the Australian Electoral Commission as the protected action ballot agent.

The Deputy President issued an order in PR763862, appointing the Australian Electoral Commission as the protected action ballot agent for the Association's proposed industrial action against Network Aviation. The Deputy President did not hold a hearing as Network Aviation withdrew its objection to the application. The determination was based on the material provided, including the declaration of Gareth Uren of the Association, which detailed the steps taken in bargaining with Network Aviation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established