Helicopters Australia Pty Ltd T/A HNZ Australia v Australian Federation of Air Pilots

[2011] FWA 463

[2011] FWA 463

FAIR WORK AUSTRALIA

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)

COMMISSIONER CLOGHAN PERTH, 22 JANUARY 2011

Suspension of protected industrial action.

[1] On 17 January 2011, Helicopters Australia Pty Ltd t/a HNZ Australia (“the Employer”) made application to Fair Work Australia (FWA) for an Order to suspend or terminate protected industrial action.

[2] The application was made pursuant to s.424 of the Fair Work Act 2009 (“the Act”).

[3] The application does not state who the proposed order should apply to and bind. Further, the application does not state the time and commencement date of effect of any order to be issued. The Employer seeks that the proposed order apply for a period of three months.

[4] The Respondent named in the application is the Australian Federation of Air Pilots (AFAP).

[5] On 21 January 2011, I issued an Interim Order; these are the reasons for issuing that Interim Order.

BACKGROUND

[6] The Employer is under contract to the Fire and Emergency Services Authority of Western Australia (FESA) to provide water bombing helicopters during the Perth bush fire season.

[7] The nominal expiry date of the unnamed current enterprise agreement is 8 December 2009.

[8] Negotiations on a replacement enterprise agreement commenced on 15 December 2009.

PROCEEDINGS

[9] The Tribunal contacted both the Employer and the AFAP on 18 January 2011 and a conference of the parties took place on 20 January 2011.

[10] Prior to the conference, the Tribunal was advised that:

• Commissioner Williams, following an application by the AFAP, was satisfied that the relevant provisions of the Act had been satisfied and issued a Protected Action Ballot Order (PR504836) on 9 December 2010;



• the ballot concluded on 4 January 2011 and a majority of employees endorsed the taking of protected industrial action;



• following a request by the Employer, the AFAP, subject to certain conditions, gave an undertaking, “to not give notice under the Act of any proposed industrial action prior to 28 January 2011 should the vote by the pilot body not approve the amended document [enterprise agreement]”;



• the Employer acknowledged that it “understood” the terms of the undertaking;



• one of the conditions of the undertaking was that the vote on the proposed enterprise agreement conclude on 17 January 2011;



• on 17 January 2011, the vote on the proposed enterprise agreement had not concluded, further, it had not been distributed to employees; and



• consequently the Employer is seeking “an extension of the undertaking by the AFAP not to take industrial action prior to 21 February 2011, or alternatively, the employer request the Section 424 application proceed to hearing as soon as possible”.

STATUTORY FRAMEWORK

• Section 424 - FWA must suspend or terminate protected industrial action--endangering life etc.




Suspension or termination of protected industrial action

(1) FWA must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:

(a) is being engaged in; or

(b) is threatened, impending or probable;

if FWA is satisfied that the protected industrial action has threatened, is threatening, or would threaten:

(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(d) to cause significant damage to the Australian economy or an important part of it.

(2) FWA may make the order:

(a) on its own initiative; or

(b) on application by any of the following:

(i) a bargaining representative for the agreement;

(ii) the Minister;

(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L--the Minister of the State who has responsibility for workplace relations matters in the State;

(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory--the Minister of the Territory who has responsibility for workplace relations matters in the Territory;

(iii) a person prescribed by the regulations.

Application must be determined within 5 days

(3) If an application for an order under this section is made, FWA must, as far as practicable, determine the application within 5 days after it is made.

Interim orders

(4) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.

(5) An interim order continues in operation until the application is determined.

RELEVANT ISSUES AND CONCLUSION

[11] At the conclusion of the conference on 21 January 2011, both parties agreed to recommence negotiations on the proposed replacement enterprise agreement. The Tribunal is to assist in facilitating these discussions.

[12] The AFAP is not prepared to extend the undertaking not to give notice of any proposed industrial action prior to 28 January 2011. Further, in view of the vote on the proposed enterprise agreement not being concluded on 17 January 2011, and other reasons, the AFAP withdraws from its undertaking not to give notice of any proposed industrial action prior to 28 January 2011.

[13] Should the parties not reach agreement on the proposed enterprise agreement on 24 and 25 January 2011, the Tribunal will hear and determine the Employer’s application to suspend protected industrial action for a period of three (3) months.

[14] The Act requires, pursuant to s.424(3) that an application for an order be determined, as far as practicable, within five (5) days after it is made. Where the Tribunal is unable to determine the matter within five (5) days, FWA must make an interim order suspending the protected industrial action.

[15] Accordingly, I issued an Interim Order (PR506154) on 21 January 2011 suspending protected industrial action from 12:00 noon on Saturday 22 January 2011 to 6:00pm on 26 January 2011 or until such time as the application is determined.

[16] These are the reasons for my Interim Order issued on 21 January 2011.

COMMISSIONER

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<Price code A, PR506155>