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

[2024] FWC 3197

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, Bravo Airlines Pty Limited

(B2024/1487)

COMMISSIONER PLATT

ADELAIDE, 20 NOVEMBER 2024

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

The Transport Workers’ Union of Australia (TWU or Applicant) has made an application 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 & Bravo Airlines Pty Limited (the Employers).

I note 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 19 November 2024, the Commission was advised that the Respondent objected to question 7 of the draft order. The matter was subsequently scheduled for Conference at 4.30pm (SA) on 19 November 2024. The Respondent did not attend and the matter was adjourned to 20 November 2024 for Conference and Hearing.

At 9:00am (SA) on 20 November 2024 I conciliated the matter. Ms Biviano represented the Applicant, Ms Hignett represented the Respondent and Mr Mattner represented AFAP. During conciliation, the Respondent advised it withdrew its objection. Both parties advised that they did not object to a Consent Order being made in the terms proposed.

On the basis of the material before me, including the declaration of Edward Nell, Organiser, 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 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 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 4 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 PR781421.

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 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.

COMMISSIONER

[1] B2024/1488.

[2] This is, in effect, 14 calendar days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the Transport Workers' Union of Australia for a protected action ballot order in relation to certain employees of Alliance Airlines Pty Limited and Bravo Airlines Pty Limited. The union sought the order under section 437 of the Fair Work Act 2009, and the application was filed in response to ongoing disputes regarding a proposed enterprise agreement. The Australian Federation of Air Pilots had also lodged a separate application for a ballot order concerning the same proposed agreement. The matter was initially scheduled for a conference, but the employers did not attend, leading to an adjournment.

The legal issues before the Commission included whether the union had genuinely attempted to negotiate in good faith with the employers, whether there was a notification time in relation to the proposed agreement, and whether the requirements under section 443 of the Fair Work Act had been fulfilled. The union needed to demonstrate that it had been genuinely trying to reach an agreement and that all procedural requirements were met to justify the protected action ballot. Additionally, the Commission had to determine a closing date for the ballot that complied with the statutory provisions.

The Commission found that the union had indeed been genuinely attempting to negotiate with the employers and had met all the requirements under section 443(1) of the Fair Work Act. The Commission also concluded that the proposed closing date for the ballot, 4 December 2024, was appropriate and met the statutory criteria. The decision to conduct the ballot through TrueVote Pty Ltd, an approved ballot agent, was upheld. Furthermore, the matter was assigned to another member of the Commission for compulsory conciliation, which would require the attendance of all bargaining representatives.

The Fair Work Commission granted the union's application for a protected action ballot order. The ballot is to be conducted by TrueVote Pty Ltd and will close on 4 December 2024. This decision facilitates the union's ability to proceed with the ballot, pending the outcome of the compulsory conciliation conference. The Commission's order ensures that the union and employers will engage in further negotiations under the supervision of another Commission member, aiming to resolve the outstanding issues related to the proposed enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established