Paul Andrew Sutherland v Airservices Australia

[2024] FWC 1057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Paul Andrew Sutherland
v

Airservices Australia

(B2024/465)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 APRIL 2024

Proposed protected action ballot of employees of Airservices Australia

This is an application by Paul Andrew Sutherland (Mr Sutherland 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 Daniel Lachlan Walker has made a separate application for a protected action ballot order in relation the same proposed agreement.[1]

On 22 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 Sutherland.

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 Mr Sutherland, Air Traffic Controller, setting out the steps taken by the Applicant 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 6 June 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of seven (7) working days 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.

An Order has been separately issued in PR773842.

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] B2024/466.

[2] This is, in effect, 30 working days from the date of the Order, as required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Paul Andrew Sutherland has applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of Airservices Australia. The application was made in relation to a proposed agreement, and Airservices Australia did not object to the application provided that the notice period for the proposed industrial action was extended to seven working days. The application was subsequently agreed to by Mr Sutherland.

The primary legal issue before the Commission was whether the requirements of section 443(1) of the Act had been satisfied to allow the protected action ballot to proceed. This involved assessing whether a notification time existed for the proposed agreement and if all conditions stipulated in section 443(1) had been fulfilled. The Commission was also required to determine if there were exceptional circumstances justifying the extended notice period of seven working days.

The Deputy President, Hampton, concluded that the application met the necessary criteria. The Commission was satisfied that there was a notification time for the proposed agreement and that all requirements under section 443(1) had been met. Additionally, the extended notice period was justified due to relevant exceptional circumstances under section 443(5). Consequently, an Order was made to conduct the ballot by the Australian Electoral Commission, with voting to close on 6 June 2024. This date was determined to be 30 working days from the date of the Order, in line with the AEC's requirements. The matter was to be assigned to another Commission member for a compulsory conciliation conference, with directions issued to ensure meaningful negotiations.

The final order included provisions for the extended notice period and the ballot period, ensuring that the employees had adequate time to vote on the proposed industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established