Helicopters Australia Pty Ltd T/A HNZ Australia v Australian Federation of Air Pilots
[2011] FWA 524
•31 JANUARY 2011
[2011] FWA 524 |
|
DECISION AND REASONS FOR DECISION |
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Helicopters Australia Pty Ltd T/A HNZ Australia
v
Australian Federation of Air Pilots
(B2011/2513)
and
(B2011/2528)
COMMISSIONER CLOGHAN | PERTH, 31 JANUARY 2011 |
Suspension of protected industrial action.
[1] On 21 January 2011, I issued an Interim Order known as the “Helicopters Australia Pty Ltd T/A HNZ Australia Suspension Interim Order 21 January 2011” (“the Interim Order”).
[2] On 22 January 2011, I issued my reasons for issuing the Interim Order ([2011] FWA 463).
[3] The Interim Order and reasons were issued as a result of an application (B2011/2513) by Helicopters Australia Pty Ltd T/A HNZ Australia (“the Employer”) to suspend or terminate protected industrial action.
[4] The application (B2011/2513) was made pursuant to s.424 of the Fair Work Act 2009 (“the Act”).
[5] The Respondent named in the application (B2011/2513) is the Australian Federation of Air Pilots (AFAP).
[6] The background and proceedings to application B2011/2513 are set out in what shall be referred to as Reasons for Decision [2011] FWA 463.
[7] Following the issuing of the Interim Order, the AFAP, on 22 January 2011, pursuant to Clause 6 of the Interim Order (Liberty to Apply), applied to rescind the Interim Order.
[8] At the recommencement of negotiations facilitated by the Tribunal on 24 January 2011, I advised both parties that should they not reach agreement on the proposed replacement agreement, I would hear and determine both the Employer’s substantive application to suspend protected industrial action for three months and the AFAP’s application to rescind the Interim Order.
[9] Further, I advised both parties that I would also hear and determine, if necessary, an application by the AFAP for extension of the 30 day period for the taking of protected industrial action which I had already been alerted to, but had not formally received. Subsequently, I formally received application B2011/2528. Application B2011/2528 is made pursuant to s.459 of the Act. The named Respondent is Helicopters Australia Pty Ltd T/A HNZ Australia. The application arises out of matter B2010/318, which is the initial AFAP application for a Protected Action Ballot Order which was issued by Commissioner Williams on 9 December 2010 and referred to in paragraph [10] in my Reasons for Decision on 22 January 2011.
[10] Simply put, I advised the Employer and the AFAP that I would treat as a whole, the three parts of the dispute which had been referred to me.
[11] By mid afternoon on 24 January 2011, both parties verbally advised me that they had reached agreement on a replacement enterprise agreement. As a consequence, the Employer stated that it would be withdrawing its application to FWA to suspend protected industrial action for three months, and consequently, the AFAP took the view that its application to rescind the Interim Order would “fall away”. In addition, the Employer advised that it would not oppose the AFAP application to extend, for 30 days, the period in which protected industrial action must be commenced.
[12] On the same afternoon, the Employer’s representative, by email, requested that application B2011/2513 be withdrawn and advised that the Employer does not oppose the AFAP application B2011/2528 to extend, by 30 days, the period in which industrial action must be commenced.
[13] What I have before me, shortly put, is the following:
• the Employer has withdrawn its application for an order to suspend, for three (3) months, protected industrial action available to the AFAP. The withdrawal has been requested both orally and in writing. The withdrawal is unequivocal and brings the proceedings to an end; and
• as a consequence the Interim Order has no applicability; and
• irrespective of the above matters, the Employer is not opposing the application by the AFAP to extend, by 30 days, the period for commencement of taking protected industrial action.
RELEVANT STATUTORY FRAMEWORK
[14] The Act provides at s.587(3) that:
“FWA may dismiss an application:
(a) on its own initiative; or
(b) on application.”
[15] Further, the Act provides at s.588:
“A person who has applied to FWA may discontinue the application:
(a) in accordance with the procedural rules (if any); and
(b) whether or not the matter has been settled.”
[16] The Australian Concise Oxford Dictionary definition of “withdraw” is to “take away” or “remove”. In the same Dictionary, “discontinue” means to “cease from”.
[17] I note the Employer has not filed a Notice of Discontinuance in accordance with the procedural rules, nor has it made “application” to dismiss the application in accordance with s.587(3)(b) of the Act.
[18] In my view, the Act provides a distinction between discontinuing an application and the dismissal of an application. The “withdrawal” of an application is neither a discontinuance nor an application to dismiss an application.
CONCLUSION
[19] It is essential that the Tribunal provide certainty, especially as the proposed enterprise agreement will shortly go to ballot of the relevant employees.
[20] For reasons of certainty, in view of what has occurred, I have reached the conclusion that application B2011/2513 should be dismissed at my initiative in accordance with s.587(3)(a) of the Act. I emphasise that my dismissal has nothing to do with the merits of the application. As a consequence, the Interim Order ceases to have effect as of the issuing of this Decision. An Order will be issued to reflect this Decision.
[21] I am satisfied, in relation to application B2011/2528, that a Protected Action Ballot Order applies to the AFAP (see [2011] FWA 463) and that the period to commence protected industrial action has not been extended previously.
[22] Finally, in view of the information revealed in the course of these interrelated matters, the grounds set out in application B2011/2528 and the fact that the Employer does not oppose the application, I am satisfied that FWA should extend the period in which the protected industrial action can commence by a further 30 days from 3 February 2011; an Order to this effect will now be issued.
COMMISSIONER
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