The Australian Federation of Air Pilots v Skytraders Pty Ltd Summary

[2024] FWC 3584

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Federation of Air Pilots
v

Skytraders Pty Ltd

(B2024/1686)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 DECEMBER 2024

Proposed protected action ballot of employees of Skytraders Pty Ltd.

This is an application by the Australian Federation of Air Pilots (AFAP 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 Skytraders Pty Ltd (Skytraders or Employer).

On 23 December 2024, the Commission was advised that the Employer did not object to the Application.

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 Andrew Zoltan Molnar, Legal Counsel, setting out the steps taken by the AFAP in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Skytraders, 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 Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 17 January 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR782800.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. 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] This is, in effect, 15 working days from the date of the Order, and was the date sought in the application

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Federation of Air Pilots (AFAP) made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Skytraders Pty Ltd (Skytraders). The application was not opposed by Skytraders. The matter was determined on the papers without the need for a hearing.

The primary legal issue before the Deputy President was whether the requirements under section 443(1) of the Act had been satisfied for the ballot to proceed. This involved verifying the notification period for the proposed agreement and confirming the union's genuine efforts in bargaining with the employer. Additionally, the court had to ascertain if the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), was eligible under section 468A of the Act and determine the closing date for the voting period as per section 443(3)(c) of the Act.

The Deputy President found that the union had genuinely attempted to reach an agreement with Skytraders and that all conditions outlined in section 443(1) of the Act had been met. The Deputy President approved CiVS as a suitable ballot agent and set the closing date for voting as 17 January 2025, which equates to 15 working days from the issuance of the order. A separate order was issued to mandate a compulsory conciliation conference under section 448A of the Act, to be overseen by another member of the Commission.

The Deputy President issued an order permitting the ballot to proceed and scheduled the compulsory conciliation conference, with directions to ensure the parties are prepared for meaningful negotiations.

The Australian Federation of Air Pilots v Skytraders Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established