Transport Workers' Union of Australia v Alliance Airlines Pty Limited and Bravo Airlines Pty Limited

[2024] FWC 3285

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Alliance Airlines Pty Limited and Bravo Airlines Pty Limited

(B2024/1546)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 NOVEMBER 2024

Proposed protected action ballot of employees of Alliance Airlines Pty Limited & Bravo Airlines Pty Limited

This is an application by the Transport Workers’ Union (TWU 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 Alliance Airlines Pty Limited (Alliance Airlines) and Bravo Airlines Pty Limited (Bravo Airlines) (the Employers).

I note that the Australian Federation of Air Pilots (AFAP)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 25 November 2024, the Commission was advised that the Employer, in effect, 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 Edward Nell, National Industrial Officer, setting out the steps taken by the TWU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with Alliance Airlines and Bravo Airlines, 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 TrueVote Pty Ltd (TrueVote). TrueVote 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 10 December 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR781704.

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 in 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] B2024/1543.

[2] This is, in effect, 10 working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia (TWU) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning specific employees of Alliance Airlines Pty Limited and Bravo Airlines Pty Limited. This application was made to the Fair Work Commission, with Deputy President Clancy presiding over the matter in Melbourne on 26 November 2024. The application seeks to enable a ballot to be conducted regarding proposed protected industrial action. Notably, the Australian Federation of Air Pilots has also filed an application for a ballot order related to the same proposed enterprise agreement.

The legal issues before the court encompassed whether the TWU had fulfilled all the statutory requirements for the ballot, including the notification period and the genuineness of bargaining efforts. Additionally, the court had to determine the appropriate closing date for voting and whether TrueVote Pty Ltd, the proposed ballot agent, was eligible and authorised to conduct the ballot. The Employers, Alliance Airlines and Bravo Airlines, did not object to the application, which simplified the decision-making process.

After reviewing the submissions and the declaration from Edward Nell, the National Industrial Officer of the TWU, Deputy President Clancy determined that the TWU had genuinely attempted to reach an agreement with the Employers and that all statutory requirements had been met. The closing date for voting was set at 10 December 2024, establishing the ballot period. The court issued an order approving the ballot agent, TrueVote Pty Ltd, and directed the parties to attend a compulsory conciliation conference. Further orders and directions will be issued to ensure meaningful negotiations occur during the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established