Flight Attendants' Association of Australia v Virgin Australia Airlines Pty Limited T/A Virgin Australia Airlines

[2023] FWC 3449

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Flight Attendants' Association of Australia
v

Virgin Australia Airlines Pty Limited T/A Virgin Australia Airlines

(B2023/1402)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 22 DECEMBER 2023

Application to extend the 30 day period in relation to B2023/1261

This matter concerns the declaration of the result of a protected action ballot (PR768344) held in matter B2023/1261 and declared 1 December 2023.

The Flight Attendants’ Association of Australia (FAAA) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application made by the FAAA contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Virgin Australia Airlines Pty Limited T/A Virgin Australia Airlines (Virgin) did not advise the Commission of any objections.

I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible FAAA members employed by Virgin be extended by a further 30 days.

This order will operate on and from 22 December 2023.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Flight Attendants' Association of Australia (FAAA) sought an extension of the 30-day period in which industrial action could be authorised by a protected action ballot. The application was made pursuant to section 459(3) of the Fair Work Act 2009. The respondent, Virgin Australia Airlines Pty Limited T/A Virgin Australia Airlines (Virgin), did not object to the application. The dispute centred on the interpretation and application of section 459(3) of the Act, which allows for the extension of the 30-day period under certain conditions.

The legal issue before the Fair Work Commission was whether the FAAA had satisfied the requirements of section 459(3) of the Act to extend the 30-day period for the commencement of protected industrial action. The court considered whether the FAAA had made an application to the FWC for the extension, and whether the period had not already been extended. The Deputy President was satisfied that both conditions were met and that the application should be granted. The Deputy President found that the FAAA had complied with the statutory requirements and that the application was valid.

Consequently, the Deputy President ordered that the 30-day period for the commencement of protected industrial action for eligible FAAA members employed by Virgin be extended by a further 30 days. This extension was to take effect from 22 December 2023. The decision was made in the context of the ongoing industrial dispute between the FAAA and Virgin, which had been subject to a protected action ballot. The extension of the 30-day period provides additional time for negotiations or other resolution mechanisms to be explored before any industrial action can commence.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established