The Australian Licenced Aircraft Engineers Association v Virgin Tech Pty Ltd

[2023] FWC 1105

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Licenced Aircraft Engineers Association
v

Virgin Tech Pty Ltd

(B2023/419)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 MAY 2023

Proposed protected action ballot of employees of Virgin Tech Pty Ltd

This is an application by the Australian Licenced Aircraft Engineers Association (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Virgin Tech Pty Ltd (Respondent).

On 9 May 2023, the Fair Work Commission was advised that the Respondent neither consented nor objected 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 statutory declaration of Peter Gill of the Applicant declared on 8 May 2023, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR761772.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Licenced Aircraft Engineers Association (Applicant) sought a protected action ballot order from the Fair Work Commission (FWC) against Virgin Tech Pty Ltd (Respondent) under section 437 of the Fair Work Act 2009. The Applicant alleged that it had been genuinely trying to reach an agreement with the Respondent, but had been unable to do so, and thus sought to organise a protected action ballot to empower its employees. The Respondent neither consented nor objected to the application, prompting the FWC to determine the matter on the papers without holding a hearing.

The primary legal issue before the FWC was whether the Applicant had satisfied the requirements under section 443(1) of the Fair Work Act for a protected action ballot. This involved determining whether the notification time had elapsed and whether the Applicant had genuinely attempted to reach an agreement with the Respondent. The FWC considered the statutory declaration of Peter Gill, an officer of the Applicant, which detailed the steps taken by the Applicant in bargaining with the Respondent.

The FWC found that the Applicant had met the statutory requirements for a protected action ballot. The statutory declaration provided by the Applicant demonstrated that it had been genuinely attempting to reach an agreement with the Respondent and that the notification period had expired. Based on this, the FWC concluded that the requirements for a ballot were satisfied. Consequently, the FWC determined to grant the Applicant's application for a protected action ballot order. The decision was made without the need for a hearing, as the Respondent did not object to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established