Transport Workers' Union of Australia v Menzies Aviation (Australia) Pty Ltd T/A Menzies Aviation Group (Australia) Pty Ltd

[2023] FWC 2225

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia
v

Menzies Aviation (Australia) Pty Ltd T/A Menzies Aviation Group (Australia) Pty Ltd

(B2023/917)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 5 SEPTEMBER 2023

Proposed protected action ballot of employees of Menzies Aviation (Australia) Pty Ltd

This is an application by the Transport Workers’ Union of Australia (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 Menzies Aviation (Australia) Pty Ltd T/A Menzies Aviation Group (Australia) Pty Ltd (Menzies Aviation or Employer).

On 4 September 2023, the Commission was advised that Menzies Aviation did not, in effect, 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 Mr Chris Smith, Organiser, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Menzies Aviation, 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 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[1] and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, and in consultation with the parties, the Commission has determined that the date by which voting is to close is 19 September 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR765805.

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 involved 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[2] This date is, in effect, ten (10) working days from the date of effect of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Transport Workers’ Union of Australia (TWU) for a protected action ballot order concerning certain employees of Menzies Aviation (Australia) Pty Ltd. Menzies Aviation did not object to the application, leading the Deputy President to decide the matter on the papers. The TWU sought to conduct a ballot for potential protected action, asserting it had genuinely attempted to reach an agreement with Menzies Aviation during its bargaining process. The Commission determined that the proposed agreement had a notification period and that all requirements under the Fair Work Act 2009 were met. The ballot, to be conducted by Democratic Outcomes Pty Ltd T/A CiVS (CiVS), was approved as an eligible ballot agent. The voting period was set to close on 19 September 2023, establishing the ballot period for the purposes of the Act. The matter was assigned to another Commission member for a compulsory conciliation conference, aimed at facilitating meaningful negotiations.

The legal issues addressed by the Commission included whether the TWU had met the statutory requirements to conduct a protected action ballot and if Menzies Aviation's lack of objection justified proceeding with the determination. The Deputy President examined the TWU's declaration and the steps taken in the bargaining process to ensure that all conditions under section 443 of the Act were fulfilled. The Deputy President concluded that the application met the necessary criteria, given Menzies Aviation's non-objection and the TWU's assertion of genuine bargaining efforts. The Deputy President also determined the appropriate closing date for the ballot, ensuring compliance with the Act's provisions.

The reasoning of the Deputy President was grounded in the statutory requirements of the Fair Work Act 2009, focusing on the necessity for genuine bargaining and the procedural correctness of the ballot application. The Deputy President's decision was based on the materials presented, including the TWU's declaration and Menzies Aviation's non-objection, leading to the conclusion that the TWU was entitled to proceed with the ballot. The Commission's decision to set a ballot closing date and assign the matter to another member for conciliation reflected a balanced approach, aiming to facilitate negotiations while allowing the ballot process to proceed.

The final orders issued by the Deputy President included the approval of the ballot to be conducted by CiVS, with a closing date of 19 September 2023, and the assignment of the matter to another Commission member for a compulsory conciliation conference. The orders also mandated the attendance of bargaining representatives and the issuance of directions to ensure meaningful negotiations. This comprehensive approach aimed to address both the immediate need for a ballot and the broader objective of reaching a negotiated agreement between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established