United Firefighters' Union of Australia v Airservices Australia T/A Aviation Rescue Fire Fighting Service

[2022] FWC 2718

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Firefighters’ Union of Australia
v

Airservices Australia T/A Aviation Rescue Fire Fighting Service

(B2022/1533)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 OCTOBER 2022

Proposed protected action ballot of employees of Airservices Australia

This is an application by the United Firefighters’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Airservices Australia (Respondent) which trades as Aviation Rescue Fire Fighting Service.

On 11 October 2022, the Respondent advised that it did not object to the application subject to there being an extended notice period of seven working days in relation to five of the proposed forms of industrial action to which the Applicant agreed.

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 Ms Justina Beltrame of the Applicant 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.

The Applicant and Respondent agree that the period of written notice referred to in s.414(2)(a) of the Act should be longer than three working days (seven working days) for five of the proposed forms of industrial action set out in questions 1 to 5 of the proposed questions. On 11 October 2022, the Respondent set out the circumstances that are said to justify a longer period. The circumstances are not disputed. I am satisfied that these circumstances are exceptional circumstances and that they justify a longer notice period. I am satisfied that the long period proposed – of seven working days – is appropriate having regard to the circumstances and the nature of the proposed industrial action. There are no grounds of which I am aware which would cause me not to exercise my discretion given my finding. Accordingly, I exercise my discretion under s.443(5) to require that period of written notice for the purposes of s.414(2) of the Act, proposed forms of industrial action set out in questions 1 to 5 be at least seven working days. The order I make will reflect this requirement.

An order has been separately issued in PR746698.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) heard an application by the United Firefighters’ Union of Australia (Applicant) for a protected action ballot order in relation to employees of Airservices Australia, trading as Aviation Rescue Fire Fighting Service (Respondent). The application was made under section 437 of the Fair Work Act 2009. The dispute centred around the proposed forms of industrial action by the employees and the notice period required before such action could be taken. The Respondent did not object to the application, but requested an extended notice period of seven working days for five specific forms of industrial action. The Applicant agreed to the extended notice period, and the matter was determined on the papers without a hearing.

The legal issues before the FWC were whether the circumstances justified a longer notice period than the three working days stipulated in section 414(2)(a) of the Act, and if so, whether the proposed seven working days was appropriate. The FWC had to consider whether the Respondent's circumstances were exceptional and whether the longer notice period was necessary and reasonable given the nature of the proposed industrial action.

The FWC Deputy President Gostencnik concluded that the circumstances presented by the Respondent were indeed exceptional and justified a longer notice period. The Deputy President was satisfied that the proposed seven working days was appropriate and that there were no grounds to not exercise the discretion provided under section 443(5) of the Act. The decision was based on the material before the FWC, including the declaration by Ms. Justina Beltrame of the Applicant, which set out the steps taken by the Applicant in bargaining with the Respondent and its genuine efforts to reach an agreement.

In conclusion, the FWC exercised its discretion under section 443(5) of the Act to require a notice period of at least seven working days for the proposed forms of industrial action set out in questions 1 to 5. An order was issued separately in PR746698, reflecting the requirement for the extended notice period.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established