1
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Federation of Air Pilots
v
Royal Flying Doctor Service of Australia Central Operations
(B2015/230)
COMMISSIONER HAMPTON ADELAIDE, 30 JANUARY 2015
Proposed protected action ballot of Pilot employees of Royal Flying Doctor Service, Central
Operations - proposed agreement endorsed by negotiating committee but soundly rejected by
employees - bargaining representative revised claims in light of that rejection - whether
bargaining representative was and is genuinely trying to reach an agreement - whether
bargaining representative appropriately sought and/or misrepresented position of employees
and if so whether relevant - whether ballot question unclear and uncertain - found statutory
requirements met - protected action ballot order issued.
1. Background
[1] The Australian Federation of Air Pilots (AFAP) has made application for the making
of a Protected Action Ballot Order (PABO) under s.437 of the Fair Work Act 2009. The
PABO is being sought in the context of bargaining for an enterprise agreement for Pilots
employed by the Royal Flying Doctor Service of Australia Central Operations (the RFDS).
[2] Bargaining between the parties has been occurring since September 2013 and has
involved the AFAP, a number of Pilots who have formally nominated as bargaining
representatives, and representatives of the RFDS. Leading up to this application there have
been many meetings between the bargaining representatives, two earlier Protection Action
Ballots (PABs) initiated by the AFAP - including an extant ballot that has authorised the
taking of some industrial action that continues, and a proposed enterprise agreement that was
put to the Pilots for approval in December 2014 (the proposed agreement).
[3] The proposed agreement had the support of the AFAP but was soundly rejected by the
Pilots in the employee approval ballot.
[4] The AFAP has now made, or reinstated, a series of claims for an enterprise agreement
that are not consistent with the proposed agreement that was rejected by the Pilots. It has now
also sought, by virtue of this application, that a further PABO be made.
[5] The RFDS has opposed the application, essentially on two grounds. Firstly, that the
AFAP has not, and is not, genuinely trying to reach an agreement with it, as required by the
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REASONS FOR DECISION
AUSTRALIA FairWork Commission
[2015] FWC 531
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Act. Secondly, that one of the questions in the PAB (question 10.8) is too vague and uncertain
to be included in a PABO.
[6] Having conducted a hearing in this matter, the AFAP, as the applicant, sought an
opportunity to provide written submissions. This was requested on the basis that the position
of the RFDS raised important issues and the AFAP were only aware of those matters in the
immediate lead up to the hearing. The RFDS supported that approach and in the
circumstances I took the view that it would not be practicable1 to determine the matter
immediately and it would be more appropriate to accommodate some further time for the
parties.
[7] Having considered the evidence and submissions provided by the parties in this
matter, on 29 January 2015 I issued a PABO substantively based upon the Order sought by
the AFAP. In so doing, I indicated that I would subsequently provide written reasons for that
decision.
2. The Statutory context
[8] The Act relevantly provides as follows in relation to an application for a PABO:
“436 Object of this Division
The object of this Division is to establish a fair, simple and democratic process to
allow a bargaining representative to determine whether employees wish to engage in
particular protected industrial action for a proposed enterprise agreement.
Note: Under Division 2, industrial action by employees for a proposed
enterprise agreement (other than employee response action) is not
protected industrial action unless it has been authorised in advance by a
protected action ballot.
Subdivision B—Protected action ballot orders
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed
enterprise agreement, or 2 or more such bargaining representatives (acting
jointly), may apply to the FWC for an order (a protected action ballot order)
requiring a protected action ballot to be conducted to determine whether
employees wish to engage in particular protected industrial action for the
agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a multi-enterprise agreement.
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Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be
balloted, including the nature of the proposed industrial action.
(4) If the applicant wishes a person other than the Australian Electoral Commission
to be the protected action ballot agent for the protected action ballot, the
application must specify the name of the person.
Note: The protected action ballot agent will be the Australian Electoral
Commission unless the FWC specifies another person in the protected
action ballot order as the protected action ballot agent (see subsection
443(4)).
(5) A group of employees specified under paragraph (3)(a) is taken to include only
employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant
for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of
an employee organisation that is an applicant for the protected
action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information
prescribed by the regulations.
438 Restriction on when application may be made
(1) If one or more enterprise agreements cover the employees who will be covered
by the proposed enterprise agreement, an application for a protected action ballot
order must not be made earlier than 30 days before the nominal expiry date of
the enterprise agreement, or the latest nominal expiry date of those enterprise
agreements (as the case may be).
(2) To avoid doubt, making an application for a protected action ballot order does
not constitute organising industrial action.
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439 Joint applications
Without limiting section 609, the procedural rules may provide for the following:
(a) how a provision of this Act that applies in relation to an applicant for a
protected action ballot order is to apply in relation to joint applicants for
such an order;
(b) the joinder, with the consent of each existing applicant, of one or more
bargaining representatives to an application for a protected action ballot
order;
(c) the withdrawal of one or more applicants from a joint application for a
protected action ballot order.
440 Notice of application
Within 24 hours after making an application for a protected action ballot order, the
applicant must give a copy of the application to the employer of the employees who
are to be balloted, and:
(a) if the application specifies a person that the applicant wishes to be the
protected action ballot agent—that person; or
(b) otherwise—the Australian Electoral Commission.
441 Application to be determined within 2 days after it is made
(1) The FWC must, as far as practicable, determine an application for a protected
action ballot order within 2 working days after the application is made.
(2) However, the FWC must not determine the application unless it is satisfied that
each applicant has complied with section 440.
442 Dealing with multiple applications together
The FWC may deal with 2 or more applications for a protected action ballot order at
the same time if:
(a) the applications relate to industrial action by:
(i) employees of the same employer; or
(ii) employees at the same workplace; and
(b) the FWC is satisfied that dealing with the applications at the same time
will not unreasonably delay the determination of any of the applications.
443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed
enterprise agreement if:
(a) an application has been made under section 437; and
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(b) the FWC is satisfied that each applicant has been, and is, genuinely
trying to reach an agreement with the employer of the employees who are
to be balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed
enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be
balloted, including the nature of the proposed industrial action.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will
enable the protected action ballot to be conducted as expeditiously as
practicable.
(4) If the FWC decides that a person other than the Australian Electoral
Commission is to be the protected action ballot agent for the protected action
ballot, the protected action ballot order must also specify:
(a) the person that the FWC decides, under subsection 444(1), is to be the
protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to
be the independent advisor for the ballot.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the
subject of the protected action ballot, that there are exceptional circumstances
justifying the period of written notice referred to in paragraph 414(2)(a) being
longer than 3 working days, the protected action ballot order may specify a
longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim
action for a proposed enterprise agreement, a bargaining representative of
an employee who will be covered by the agreement must give written
notice of the action to the employer of the employee.”
3. What is not in dispute
[9] It is not in dispute that, subject to the objections raised by the RFDS, the AFAP:
Is a bargaining representative and is entitled to make this application;
Has made a proper application as required by the Act and has met the
documentary and notice requirements for the application; and
Is not prevented from bringing the application by virtue of s.438 of the Act given
the nominal expiry of the current enterprise agreement applying to the parties.2
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[10] I also find that these requirements are satisfied.
[11] It is also not in dispute that the AFAP must satisfy the Commission that it has been,
and is, genuinely trying to reach an agreement with the RFDS as required by s.443(1)(b) of
the Act, in order to succeed with this application.
[12] I also note that the RFDS did not seek an extended period of notice as contemplated by
s.443(5) of the Act.
4. The position of the AFAP
[13] The AFAP contends that it has been, and is, genuinely trying to reach an agreement
with the RFDS and that the PABO should be issued.
[14] This position is primarily based upon the following contentions:
The wages proposals are not fanciful or unjustified as they are based upon claims
of parity with other aero-medical service providers and these claims remain a
paramount consideration for its members;
The parity claims were made as part of the original log of claims, were used to
justify significant increases in the present enterprise agreement, and should come
as no surprise to the RFDS;
The AFAP had reduced its wages claim, removed certain of its original claims and
had agreed to a number of issues being pressed by the RFDS, albeit in a modified
form; and
The changes in its position, both prior to and following the ballot on the proposed
agreement, arise from the instructions of its members via the Pilot representatives
who were involved in the bargaining meetings.
[15] The AFAP also contended that following the rejection of the proposed agreement, the
parties had discussed the revised claims and these had been rejected by the RFDS. This
should be contrasted with the authorities relied upon by the RFDS where the applicants made
the PABO application prior to any response being provided by the employers. Further, the
AFAP revised its claims on the instructions of its members after the proposed agreement was
comprehensively rejected.
[16] In relation to the making of this application and the AFAP’s rejection of a recent
RFDS proposal to submit the matter to arbitration, neither action meant that it was not
genuinely trying to reach an agreement.3
[17] The AFAP also contended that it was not relevant for the Commission to consider
whether the AFAP was representing the views of its members. In any event, it contended that
the evidence demonstrated that it had sought the views of members through the Pilot
representatives, had regard to those views when indicating its position on the proposed
agreement, but could not force the members to vote up the agreement. That is, a bargaining
representative cannot guarantee that a proposal will be accepted by the employee group. All
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that the AFAP could do was inform the employees that it considered the proposal was
acceptable; but it was ultimately up to the Pilots to approve or reject the offer.
[18] The AFAP referred to the timeline of events and contended that the RFDS was aware
before it put the proposed agreement to the Pilots that the AFAP had consulted its members,
that the Pilots were dissatisfied with the package and that it was unlikely to be approved by
the employees.
[19] In relation to the ballot question, the AFAP contended that an explanation of the
manner in which any industrial action could operate has been provided and that the Pilots had
an understanding of that action so as to be able to vote in the PAB.
[20] The AFAP relied upon the evidence of Mr James Lauchland, an Industrial Officer, and
Mr Phillip Remilton, a RFDS Pilot and AFAP representative based in Adelaide, both of
whom directly participated in the negotiations.
5. The position of the RFDS
[21] It was the RFDS’ position that the AFAP has not, and is not, ‘genuinely trying to reach
an agreement’ with the employer in the terms of section 443(1)(b) of the Act and that as a
result, the PAB could not be made.
[22] This position is primarily based upon the contention that the AFAP:
Gave an indication that a revised wages proposal would enable it to support the
proposed agreement;
Had agreed to the terms of the proposed agreement at the conclusion of
negotiations prior to it being put out to the employee for approval;
Did not fairly or accurately communicate the views of its members in the
bargaining process; and
Had now made expanded claims that were inconsistent with the proposed
agreement, and positions previously agreed during the negotiations, and which
were beyond the level that the RFDS could accommodate.
[23] The RFDS further contended that the expanded claims were made only in the period
immediately before the making of the PABO application and it was, in effect, premature for
the AFAP to be seeking the PAB. That is, the AFAP had not genuinely considered the
responses of the RFDS in the context of these expanded claims. In this regard, it noted that at
the meeting of 15 January 2015, the AFAP stated that it intended filing this application. The
AFAP’s consideration of the employer’s position was said to be mere lip service and
accordingly not genuine.
[24] In relation to what it described as the expanded claims, the RFDS contended that the
AFAP had previously tabled lower offers and was well aware that the 3.5% annual wage
increase offer exceeded the employer’s funding arrangements, and that the AFAP had
provided no explanation other than alleged parity with the Western Operations of the RFDS.
Further, the RFDS contended that the target and concept of parity were not consistently
advanced by the AFAP.
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[25] Further, the RFDS contended that in the circumstances and the history of the
bargaining, after almost 18 months, there should have been more realistic wage movement by
the AFAP. The fact that this has not happened and involved attempting to justify a position
based on other operations and employers was inconsistent with a party genuinely seeking an
agreement.4 That is, the AFAP was seeking higher and higher wage outcomes instead of
trying to reach a commercially realistic compromise.
[26] Further, it contended that no explanation has been given for placing back on the table
matters which had already been agreed (namely, the capping of the accident make-up pay at
52 weeks, withdrawal of the loss of license reimbursement, requirement to be on-base
20 minutes prior to ‘doors closed’ and in addition to this the introduction of the indexation of
the shift overrun allowance).
[27] The RFDS further submitted that the package agreed to by the AFAP representatives
was agreed with knowledge that it may not be accepted by those it represented. In particular,
Mr Remilton gave evidence that during the meeting he received text messages from those he
represented indicating that they would not support the 3.5% wage increase. The RFDS
contended that it was incumbent on Mr Remilton to expressly advise of this feedback. That is,
he knew at this time of some dissent and he kept this quiet.
[28] Further, the RFDS contended, in effect, that there were Pilots directly participating in
the last bargaining meeting. When the proposed agreement was voted on, only three Pilots
supported the agreement. That is, not even all of the Pilot bargaining representatives in
attendance on 13 October 2014, or participating the bargaining process, supported the
proposed agreement.
[29] On that basis, the evidence before the Commission should satisfy a conclusion that the
position put at the 13 October 2014 meeting was at odds with the views of those the AFAP
represented.
[30] The RFDS contended that the question of whether the AFAP was genuinely trying to
make an agreement required a consideration of the subjective intention of the applicant and
the overall circumstances. Given the evidence, it further contended that it was the overall
circumstances and conduct that had to be considered and this revealed that the AFAP was not
genuinely seeking an agreement with it and had not acted in a bona fide manner.
[31] In summary, the RFDS contended that after 18 months of negotiations, the AFAP had
significantly changed direction (by now advancing the revised claims contrary to the proposed
agreement developed by the bargaining committee) and this was not conducive to genuinely
trying to reach an agreement.
[32] In terms of the ballot question, the RFDS contended that it was vague and unclear and
should not be included, or in the alternative, reworded in a manner that “complies with the
Act.”
[33] The RFDS relied upon the evidence of Mr Anthony Vaughan, its Chief Operating
Officer, who also directly participated in the negotiations.
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6. The history of negotiations
[34] The AFAP represents 23 out of the total group of approximately 30 Pilots who would
be covered by the enterprise agreement. It has members at each of the three bases operated by
the RFDS; being Adelaide, Port Augusta and Alice Springs and a representative of each of
those bases participated in most of the bargaining committee meetings along with one or more
AFAP officials.
[35] On 14 August 2013, the AFAP provided the RFDS with a log of claims associated
with the present bargaining. Amongst other matters the AFAP log sought “backpay” to the
nominal conclusion of the existing enterprise agreement, wage increases based around parity
with other sections of the RFDS with an example given of 10% plus 5% per annum for
subsequent years of the agreement, clarification around on-base and standby obligations, an
increase in the loss of license insurance payment, a review of check and training allowances
and the payment of an overnight allowance for Alice Springs Pilots.
[36] On 17 October 2013, the RFDS provided the AFAP with its log of claims. Amongst
other matters, the RFDS log included changes to required response times when the Pilots
were moved to an ‘on-base’ availability, the removal of accident pay provisions and changes
to permit the recovery of aircraft endorsement (training) costs where a Pilot subsequently
leaves the operations.
[37] Both the AFAP and RFDS logs were issued on the basis that further claims might be
added later.
[38] In mid November 2013, the RFDS proposed an increase of wages of 3% per year for a
three year agreement at a bargaining committee meeting. This offer was rejected by the AFAP
at a subsequent meeting conducted on 6 December 2013.
[39] Further committee meetings were held through 2013 and 2014. Ten such meetings
were conducted in the period between September 2013 and July 2014. In general terms these
meetings were attend by representatives of the RFDS and representatives of the AFAP
including a Pilot representative from each of three RFDS bases involved. The individual Pilot
bargaining representatives also generally participated in each of the negotiation sessions.
[40] In May 2014, the AFAP conducted a PAB which endorsed the taking of protected
action. The period for the taking of protected action was subsequently extended by the
Commission. These applications were not opposed by the RFDS.
[41] On 10 July 2014, the AFAP filed a bargaining dispute with the Commission under
s.240 of the Act. As part of its application the AFAP noted that the outstanding matters
included the nominal expiry date of the agreement, wages, accident make-up pay, loss of
license insurance, shift over-run duty allowance and Acting Senior Base Pilot allowance.
[42] On 6 August 2014, the parties participated in a conference before this arm of the
Commission in relation to the bargaining dispute. In the lead up to and following that
conference, the RFDS outlined and later confirmed its position on what was understood to be
the outstanding issues. This included confirming a revised position in relation to its aircraft
endorsement claim (withdrawing the notion of a bond and accepting the AFAP’s alternative
proposal for a training wage), maintaining its position to increase the loss of license allowance
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to the amount in the relevant modern award and to index that amount, maintain make-up pay
for a period of 12 months and proposing certain arrangements for the Acting Senior Base
Pilot position. In terms of wages, the RFDS proposed, in effect, an initial increase of 3.5%
and subsequent annual adjustments of 3% or CPI, whichever was higher. An administrative
“back-payment” of 3.5% was also proposed.
[43] On 15 August 2014, the AFAP wrote to the RFDS, rejected the RFDS proposal and
confirmed that there were three outstanding major issues. On those issues it stated a position
as follows:
Wages - 5% from 1 July 2013 and 4% annual increases thereafter;
Shift overrun allowances depending upon the extent of the overrun; and
Allowances for the Acting Senior Base Pilots depending upon whether a vehicle
was supplied.
[44] In that correspondence the AFAP also indicated that it had agreed to the introduction
of a training wage, had conceded the capping of accident make-up payments and had
withdrawn a number of other claims.
[45] On 18 August 2014, a further conference was conducted before me and as a result of
that conference the RFDS implemented administrative arrangements for “backpay” to be
made to the Pilots and the AFAP sought the revocation of the then extant PABO, which was
granted.
[46] On 9 September 2014, the RFDS outlined its further position and draft clauses in
relation to the shift overruns.
[47] On 17 September 2014, the parties participated in a further conference before the
Commission. The parties attending the conference extensively explored the issues but did not
reach agreement on the terms of a potential enterprise agreement.
[48] On 23 September 2014, I issued a further PABO as sought by the AFAP, which was
not opposed by the RFDS.
[49] On 30 September 2014, the RFDS again wrote to the AFAP to outline its position and
maintained its standing wages offer (3.5% plus annual adjustments of 3% or CPI), offered to
include an allowance for overruns and include a related provision dealing with that matter.
The RFDS also confirmed its intention to put the proposal to the employees for their
consideration through a ballot.
[50] On 13 October 2014, a meeting of the bargaining representatives was conducted and
the implications of what occurred at that meeting are central to the position of the parties in
relation to this application. The following events took place:
The RFDS clarified the basis of its shift overrun proposals and the AFAP
representatives indicated that it had consulted the Pilots and whilst they were happy
that the RFDS had included an allowance as part of its proposals, even if the
proposed package was acceptable on all other matters, the agreement would be
voted down on the basis of the proposed response time clause;
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The representatives then explored the capacity of the RFDS to modify the response
time proposal and the RFDS indicated that this would depend upon the final
package;
The parties then explored the wages elements of the package and the AFAP
indicated that if the package was put to the Pilots on the basis of the RFDS
position, the AFAP would run a “no vote, meaning that it would recommend that it
be rejected by its members; and
The parties also discussed a proposed agreement being negotiated involving Pilots
at the South Eastern operations of the RFDS and noted the 3.5% annual wage
adjustments that were being proposed in that agreement.
[51] The following then occurred as recorded in the minutes of the meeting and accepted
by both parties as being generally accurate:
“Tony (Mr Vaughan) queried whether, if 3.5% increases were put to the RFDS' pilots,
the AFAP would support a 'yes' vote. Andrew (Mr Molnar) indicated that he could
not respond without first seeking comments from his members but, on a without
prejudice basis, he considered that it would be viewed quite favourably. Phil
(Mr Remilton) indicated that he couldn't give the guarantee as to the pilots' satisfaction.
Andrew confirmed that the AFAP would encourage a 'yes' if 3.5% increases were
put on the table by the RFDS. Tony acknowledged the AFAP's position but
indicated that it was not simply a matter of providing increases to the pilots. He
noted that the offer made to the pilots also had some bearing on the possible offers put
to other craft groups.
Sathish (Mr Dasan) indicated the RFDS' base line, which is that the RFDS will not
run its contracts at a loss. Andrew acknowledged this position. Tony queried
whether the Committee was prepared to break to allow the RFDS to discuss the
matter further. Andrew agreed to this position.
10.10am - Meeting adjourned
(Mark left the meeting)
10.50 am - Meeting resumed
Sathish indicated that, following discussions with the RFDS, the RFDS was
prepared to reach an in-principle agreement with the Committee today for
increases of 3.5% each year for the life of the Agreement. In respect of the
response times clause, the RFDS was agreeable to removing subparagraph (a) and
revising subparagraph (c) to reference a requirement to be on-base 20 minutes before
doors close to allow for pre-flight preparations, rather than 30 minutes. Tony
confirmed that the requirement would be for the pilot to be on base within
20 minutes of the doors closed time. Sathish confirmed that the words would be
amended in this regard.
Chris (Mr Thompson - Pt Augusta AFAP Pilot representative) indicated
that the 20 minute requirement should be a guideline only as individual cases would
influence a pilot's response time. Sathish understood this position but the RFDS
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needed to ensure some balance between its contractual compliance and safety. Chris
acknowledged this.
Tony reiterated the 3.5% increase for each year of the Agreement, noting that there
would be no link to CPI increases. Andrew acknowledged this position.
Sathish indicated that, subject to discussions today, a draft document would be
created and distributed to the Committee for comment with a view to a vote
occurring within three to four weeks. Andrew indicated that he was satisfied with
this position subject to an in-principle agreement being reached at today's meeting.
Andrew made further queries in relation to the response time clause. Tony
reiterated that subparagraph (a) would be removed and subparagraph (c) would be
amended to record an on-base requirement 20 minutes prior to doors closed. Tony
indicated that this was a maximum time and there was no prohibition on pilots
arriving at the base sooner.
Andrew indicated that the Alice Springs pilots have an outstanding concern with
respect to the proposed shift overrun allowance and that there was a request that the
clause, as proposed, be amended as follows:
'(a) On-call period overrun duty allowance - More than 30 minutes but
less than two hours.
If an employee, in the performance of duty, overruns the end of the rostered
on- call period by more than 30 minutes, but less than two hours, the
employee will be paid an on-call period overrun duty allowance of $165.
(b) On-call period overrun duty allowance - More than two hours
If an employee, in the performance of duty, overruns the end of the rostered
on- call period by two hours or more, the employee will be paid an on-
call period overrun duty allowance of $360.'
Tony reiterated that the RFDS' position was that the current wages paid to pilots
included two hours in addition to each shift and that is why the clause is structured
as proposed. Peter (Mr Docking GM - Aviation Services) also noted that a shift
overrun of in excess of 30 minutes could occur simply through experiencing
unexpected headwinds or other weather, which is why the RFDS was not prepared to
pay overrun allowances for overruns less than two hours.
Tony indicated that, ideally, circumstances that would lead to shift overruns should
be avoided where possible. The RFDS is hopeful that the threat of needing to provide
for payment of shift overrun allowances would lead to the RFDS to improve the
way it goes about managing flight assignments and the engagement of staff.
Andrew queried whether, if the RFDS was minded to leave the shift overrun
allowance clause as proposed, the RFDS be open to including an extra provision in
that clause providing a statement of intent such that the RFDS would use its best
endeavours to ensure that shift overruns do not occur. Tony confirmed this position
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had been put in previous correspondence. Andrew confirmed that was the case and
provided his apologies.
Tony queried whether he parties had an in-principle agreement. Andrew indicated
that there was and Phil advised this was subject to the finalisation of the agreement.
Andrew indicated that the AFAP would retain its protected industrial action ballot
whilst the draft agreement was being finalised and a vote occurred, but confirmed
that the AFAP would not give notice of protected industrial action until after a vote
on the draft agreement had taken place, unless there was some issue arising
between then and now. Tony confirmed that he was happy to take the call from the
AFAP in circumstances where it was considering taking protected industrial action,
should the ballot get up.
Andrew indicated that, based on the in-principle agreement reached at today's
meeting, the AFAP would be supporting a 'yes' vote, but that it was ultimately up to
the pilots to support the proposed agreement.”5
[52] The meeting concluded with the parties confirming that the proposed nominal expiry
date was 30 June 2017 and the RFDS confirming that a draft agreement would be provided to
the committee with a timetable in relation to final drafting and an employee ballot.
[53] During the meeting, the AFAP consulted its three base representatives before
communicating a position. Mr Remilton was conducting text exchanges with at least some of
the AFAP members at his base and formed the view that the wages proposal was unlikely to
be accepted. He indicated words to the effect that he could not guarantee that it would be
accepted by the Pilots.
[54] On 24 and 28 October 2014, draft versions of a proposed agreement were sent by the
RFDS to the committee for review.
[55] The AFAP requested various drafting amendments to the proposed agreement on
6 November 2014.
[56] The AFAP conducted meetings with its members at the three bases involved
(Adelaide, Port Augusta and Alice Springs) between 10 and 12 November 2014. The first
meeting was conducted at the Adelaide base and the AFAP communicated its support for the
proposed agreement. That is, it confirmed its view that the package was a reasonable position
given the recent negotiations and, in particular, the developments concerning the wages
outcome in the South Eastern operations bargaining. However, it became apparent that the
proposed agreement would not be supported by most of the AFAP members at that base.
Given that view, it is likely that the AFAP was less supportive of the proposal at the
subsequent base meetings.
[57] On 14 November 2014, the RFDS sent a revised agreement to the committee for
review.
[58] On 14 November 2014, the AFAP applied to extend the then extant PAB for a further
30 days and this application was not opposed. This was granted on 19 November 2014.
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[59] There is a dispute about the precise terms of a telephone discussion between
Mr Molnar (representing the AFAP) and Mr Dasan (representing the RFDS) that apparently
took place on 17 November 2014. The RFDS assert that Mr Molnar confirmed that the AFAP
continued to support the proposed agreement. The AFAP assert that this was not so and
indicate that this would be at odds with the base meetings that had already been conducted by
that time. Both Mr Molnar and Mr Dasan were involved in the hearing of this matter but
neither gave evidence and there are no notes of that discussion before the Commission.
[60] I do not intend to make a direct finding about the details of the discussions between
these representatives given the state of the evidence. I accept that Mr Vaughan was advised
that the AFAP was still supporting the proposal at that time.6
[61] On 20 November 2014, the AFAP wrote to the RFDS and advised that following visits
to the bases, the AFAP’s members were not supportive of the proposed agreement. The
correspondence also set out the proposals that would be acceptable to the Pilots and this
included wage adjustments of 4.5% per annum, more beneficial shift overrun payments and
changes to certain emergency services exemptions.
[62] On 25 November 2014, the AFAP wrote to the RFDS to notify its members’ intention
to take industrial action commencing 5am on 29 November 2014. There were related
proceedings before another member of the Commission relating to this notification however
these are not presently relevant. The Pilots commenced the industrial action as notified and
continue to take this action.
[63] On 3 December 2014, the RFDS wrote to the AFAP rejecting the 20 November 2014
proposals and indicating its intention to put the proposed agreement to the Pilots for approval.
[64] On 9 December 2014, the RFDS released the proposed enterprise agreement, which
was consistent with the draft originally signed-off by the negotiating committee, to the Pilots
for approval as required by the Act.
[65] On 23 December 2014, the vote in relation to the proposed agreement was declared
and a significant majority, all but three of the Pilots, voted against the proposed enterprise
agreement.
[66] On 14 January 2015, the AFAP advised the RFDS of a revised position and this
included wage increases of 6% for each year of a three year agreement and CPI in the fourth
year, accident make-up pay capped at 104 weeks (not 52 weeks) subject to a further increase
in the loss of license allowance, rejection of the proposal in relation to attendance times prior
to departure, and changes to the shift overrun payments including their indexation.
[67] On 15 January 2015, the negotiating committee met to discuss the revised AFAP
claims. The RFDS rejected the revised position, however it did agree to further consider some
administrative arrangements that would seek to avoid shift overruns. The parties also
discussed an RFDS proposal that the dispute over the agreement be put to the Commission for
arbitration. This was considered and subsequently rejected by the AFAP during that meeting.
The AFAP also advised that it intended to lodge this PABO application.
[68] The AFAP filed this application on 15 January 2015.
[2015] FWC 531
15
7. Consideration
7.1 The role of the Commission in a PABO application
[69] The role of the PABO, and consequently the role of the Commission in considering
any such application, is established by the terms of the Act. Essentially, a PABO is a
necessary step for a bargaining representative to ultimately seek the capacity to take protected
industrial action in support of bargaining for a single enterprise agreement.
[70] The PABO is part of the bargaining regime of the Act. The scheme of the Act is
outlined in various decisions of the Commission including in John Holland v “Automotive,
Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian
Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union [2010]
FWAFB 526 and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia
[2012] FCAFC 53.
[71] The taking of protected industrial action by both employees and employers, that is
designed to advance claims and to persuade the other party to change their position, is part of
that scheme.
[72] Whether any proposed industrial action becomes protected will ultimately depend on
compliance with the statutory parameters including whether a relevant question is supported
by the ballot,7 whether the action is notified in accordance with the requirements of the Act,8
and whether it is industrial action within the meaning of the Act.9 Further, an employer who is
subject to threatened, impending or probable industrial action may seek to have such action
suspended or terminated on various grounds including whether it endangers the life, the
personal health or safety, or the welfare, of the population or of part of it or causes significant
damage to the Australian economy or an important part of it,10 or causes significant economic
harm.11 Industrial action that is not protected industrial action may be prevented.12
7.2 Has the AFAP been genuinely trying to reach an agreement with the RFDS and
is it still doing so?
[73] In Total Marine Services Pty Ltd v The Maritime Union of Australia13 [2009] FWAFB
368 (Total Marine) the Full Bench said:
“[30] The requirement that an applicant for a ballot order genuinely try to reach an
agreement and be continuing to do so at the time an application for a ballot order is
made was a requirement in the Workplace Relations Act 1996. The wording of the
relevant section has been altered because of the removal of a process of establishing a
bargaining period during which protected action may be taken. The concept of
genuinely trying to reach an agreement was dealt with in other parts of the Workplace
Relations Act 1996, specifically in relation to the grounds for terminating a bargaining
period.
[31] In our view the concept of genuinely trying to reach an agreement involves a
finding of fact applied by reference to the circumstances of the particular negotiations.
It is not useful to formulate any alternative test or criteria for applying the statutory
[2015] FWC 531
16
test because it is the words of s 443 which must be applied. In the course of examining
all of the circumstances it may be relevant to consider related matters but ultimately
the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the
required point of negotiations that must be reached. All the relevant circumstances
must be assessed to establish whether the applicant has met the test or not. This will
frequently involve considering the extent of progress in negotiations and the steps
taken in order to try and reach an agreement. At the very least one would normally
expect the applicant to be able to demonstrate that it has clearly articulated the major
items it is seeking for inclusion in the agreement, and to have provided a considered
response to any demands made by the other side. Premature applications, where
sufficient steps have not been taken to satisfy the test that the applicant has genuinely
tried to reach an agreement, cannot be granted.”
[74] In JJ Richards & Sons Pty Ltd v Fair Work Australia14 the Federal Court was dealing
with a circumstance where the employer had refused to bargain. Flick J determined, in effect,
that the Commission cannot reach a state of satisfaction that an “applicant ... is ... genuinely
trying to reach an agreement with the employer” unless:
an applicant has approached the employer and informed the employer of the
general ambit of that for which agreement it sought; and
the employer has foreshadowed - even in the most general terms - its attitude as to
the proposed agreement.15
[75] Flick J also went on to observe in the same decision that the above “minimum
statement” was “sufficient to dispose of the present application however more may be
required and much may well depend on the factual scenario in which the terms of s.443(1)(b)
are to be applied.”16
[76] I note further that Flick J also observed that the addition of the term “genuine” in the
phrase genuinely trying to reach agreement “serves to emphasise the importance of a person
actually trying to solicit agreement.” His Honour continued that:
“[u]ntil a proposed agreement has been disclosed to the prospective parties, and that
response elicited, an applicant has not even tried to reach agreement - let alone
genuinely tried to reach agreement.”17
[77] As relied upon by the RFDS, in National Union of Workers, The Australian Workers’
Union and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”
known as the Australian Manufacturing Workers’ Union (AMWU) v Ricegrowers Limited
trading as SunRice18 (Ricegrowers) Watson VP was dealing with circumstances where a
proposed agreement arising from the bargaining representatives was rejected by the
employees. He observed:
“[9] The determination of whether the applicant unions are genuinely trying to
reach an agreement involves a finding of fact based on all of the relevant
circumstances. In this case there have been extensive negotiations and two failed
ballots. The negotiations are well advanced. Ricegrowers relies on the rejection of the
Agreement in the face of endorsement by the bargaining representatives and what it
[2015] FWC 531
17
sees as unreliable or unrepresentative statements as to positions put by bargaining
representatives on behalf of their members.
[10] In my view a bargaining representative may not be genuinely trying to reach an
agreement if it puts positions which are at odds with the views of those it purports to
represent. However on the evidence before me I am unable to reach such a conclusion.
The negotiations have obviously been difficult and protracted. I am satisfied that the
endorsement of the Agreement by bargaining representatives was bona fide but
obviously reflected a fine balance. It is also clear that some employees, including
those involved in, or close to the negotiations did not endorse the Agreement.
[11] As the result of the ballot indicates, the campaign against the Agreement
carried more weight than the endorsement of it by the bargaining representatives. The
employees made a decision which was open to them and effectively rebuffed the
position of their representatives. In my view these circumstances do not amount to the
bargaining representatives not genuinely trying to reach an agreement.
[12] After the ballot result was declared the unions conveyed a position for a new
agreement which was a departure from the approach taken in the negotiations to date
insofar as it sought a rollover of existing provisions rather than a completely revised
agreement. Ricegrowers contends that this casts further doubt on the efforts being
made by the unions to reach an agreement.
[13] In my view the position does not amount to the unions not genuinely trying to
reach an agreement. The second rejection of the Agreement was a major setback for
Ricegrowers - but also for the bargaining representatives. In order to continue to
bargain effectively they needed to proceed with considerable caution.
[14] The position advanced by the applicant unions and CEPU in their letter of
6 December 2010 appears to be a reversion, and makes it very hard for Ricegrowers to
address particular issues of concern within the previous agreement framework.
However given the recent history the approach is to an extent understandable. It
proposed one way forward. It did not preclude others. From Ricegrowers perspective it
was unhelpful. However it did not mean that the unions were not genuinely trying to
reach an agreement.”
[78] The AFAP contend that this approach is not consistent with the Total Marine Full
Bench and that it was not appropriate for the Commission to consider the communications
between the Federation and its members in the present context.
[79] In the original Total Marine decision,19 Thatcher C stated as follows:
“[126] I agree with the MUA submission that there is nothing in Division 8 that would
require FWA, in determining applications for protected action ballot orders, to
supervise the conduct of bargaining representatives in relation to the employees they
represent.
[127] The absence on the part of TMS of knowledge of the contact between MUA
officials and the relevant employees is not a relevant consideration in dealing with this
application.
[2015] FWC 531
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[128] The process of allowing bargaining representatives to determine whether
employees wish to engage in particular protected industrial action for the purpose of
supporting or advancing claims is far different to the process for the approval of
enterprise agreements, which includes the requirement (s.180(5)) that the employer
take all reasonable steps to ensure that the terms of the agreement and the effect of
those terms are explained to the employees. Also, the employer gives affected
employees a copy of, or access to, the proposed agreement and certain other material
prior their approving the agreement.”
[80] It is in my view important to appreciate that the Commissioner was dealing with the
following submission made by the employer:
“[125] The TMS representative submitted:
“A bargaining representative on its ordinary natural meaning clearly means a
representative of someone, and representative is to represent someone's views.
Now, how on Earth an applicant could argue that there's good faith bargaining
going on or, more particularly and more relevantly, there's a genuine try to get
as far for an agreement which under this Act is made between the employer
and the employee, and how it can say it's genuinely trying to do that as a
bargaining representative, which is what section 443(1) requires, without some
evidence that it is representing views, in other words, there has been some
communication between employees and the union is, in my submission,
beyond me.”
[81] In Total Marine, the Full Bench, stated:
“[34] Commissioner Thatcher considered whether the MUA was impermissibly
mixing its claims for an enterprise agreement with claims for other types of agreement
and found that it was not. He considered whether there was a need to demonstrate that
the MUA was representing the views of employees it purported to represent and
determined that the Act did not require that type of supervision. We believe he was
correct in this view.”
[82] When seen in context, I do not understand the Total Marine Full Bench to be
suggesting that the conduct of a bargaining representative in properly representing its
members cannot be a relevant consideration. Rather, it was not necessary for the Commission
to supervise the internal processes of a bargaining representative, or seek evidence in order to
confirm that it was representing the views of its members.
[83] I would respectfully agree with the approach evident in Ricegrowers. That is, in some,
but probably rare cases, it may be appropriate to consider whether a bargaining representative
has been putting forward proposals that it knows are at odds with its members’ position. That
conduct, in appropriate circumstances, may indicate that the bargaining representative is not
genuinely seeking an agreement, and may for instance, be negotiating with an ulterior motive.
[84] In approaching any such assessment, it must also be borne in mind that the expression
“genuinely trying” in the present context is concerned with the genuineness of efforts by the
bargaining representative to achieve the goal of an enterprise agreement that meets the
[2015] FWC 531
19
approval requirements of the Act. This will turn upon the applicant’s motivation; its intention,
object or purpose.20
[85] Although not directly relevant it is clear that for its part the RFDS is genuinely trying
to reach an agreement with its Pilots and has made a number of important concessions with a
view to achieving that end. It is also evident that it is rightly concerned and disappointed
about the fact that it made concessions through the bargaining process to obtain the support of
the AFAP, based upon indications from its representatives, but those concessions did not
produce an agreement with the majority of the Pilot group and the issues in dispute have now
expanded.
[86] However, under the Act, the relevant immediate consideration is whether, in this case,
the AFAP has been, and is, genuinely trying to reach an agreement with the RFDS. This
involves a consideration of the AFAP’s actions and intent both prior to and at the point of the
PABO application and the overall circumstances more generally.
[87] It must also be borne in mind that making an enterprise agreement requires the support
of the employer, who ultimately must make a proposal, and a majority of the group of
employees who would be covered.21 The Act envisages that these employees must make an
informed and genuine decision based upon an explanation of the terms of the proposal (and
other matters set out in the Act)22 and it is their collective views, by majority, that form the
employee approval. The AFAP, although being a bargaining representative, does not make or
enter into the agreement on behalf of its members; it is the vote of the employee group that
makes the enterprise agreement.23
[88] The Act in s.228 establishes the obligations on bargaining representatives to act in
good faith in the following terms:
“228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining
representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially
sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the
agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining
representatives for the agreement, and giving reasons for the bargaining
representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of
association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for
the agreement.
[2015] FWC 531
20
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for
the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be
included in the agreement.”
[89] These obligations are not a substitute for the requirement that a bargaining
representative is genuinely trying to reach an agreement, but they do set some of the context
for the bargaining regime in which the assessment of the AFAP’s intentions is made.
[90] Whilst it is the overall intent and conduct that must be considered, it is helpful to
initially consider such in the context of events before and after the rejection of the proposed
agreement.
[91] I have set out earlier the history of the negotiations and the approach adopted by the
parties. To a large degree, other than the timeframes, there was nothing remarkable about the
process leading to the ballot of the Pilots in relation to the proposed agreement. Guided by the
views of the base representatives, the AFAP modified their original claims to attempt to
achieve the best deal possible. This involved some compromises and accommodation of the
position of the RFDS and also involved significant concessions by the RFDS in the context of
its starting position.
[92] I have considered whether Mr Remilton should have been more direct in his
communications of the negative feedback apparently coming from his base during the
meeting of 13 October 2014. However, there is no suggestion that any guarantees of Pilot
support were made by the AFAP and the Federation made it clear in the meeting of
13 October 2014 that the ultimate decision on the proposed agreement would be made by the
Pilot group.
[93] In hindsight, it would also have been prudent for the AFAP to have more broadly
consulted its membership prior to giving its support for the proposed agreement.
[94] However, in the end, prior to the proposed agreement being put out to ballot, the
AFAP had comprehensively canvassed its members and advised the RFDS that the package
did not have the support of the members and would probably not be approved. This was
representative of its members’ views and consistent with its obligations as a bargaining
representative. The RFDS decided that despite that feedback it would maintain its offer and
put the proposed agreement to the employees.
[95] I am not critical of the decision of the RFDS to take that action. It had been
negotiating for many months, had reached a position by making compromises designed to
achieve an agreement with the indication that these would win the support of the AFAP,
which occurred, and had made a proposal which was objectively reasonable and might have
been expected to be approved by the employees.
[96] However, the AFAP has not misrepresented or failed to represent the views of its
members, rather it appropriately relied upon the base representatives for guidance. What has
[2015] FWC 531
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apparently occurred here is that those representatives may have initially misread the attitude
of the members and when formally consulted through the AFAP base meetings, their views
became evident and were confirmed back to the RFDS before the proposed agreement was
formally put to the employees for approval.
[97] This does not reveal that the AFAP was not genuinely trying to reach an agreement
with the RFDS. The AFAP must accommodate the views of its members; without the Pilots
approval, there is no agreement.
[98] I am not without reservations about the conduct of the AFAP following the rejection
of the proposed agreement. That is, given the resounding rejection of that proposal, it was
appropriate to review the claims being advanced in light of the views taken by its
membership. However, what it appears to have done is taken each of the matters that might
have led its individual members to reject the proposal and then advanced claims on each of
these. This might give it bargaining room, however a realistic assessment of the overall
package will ultimately be required. Further, the AFAP presented a position on the wages
outcome after consulting its membership in the immediate lead up to the ballot, but
subsequently put a different proposal after the proposed agreement had been rejected.
[99] I have also considered the fact that the RFDS has made significant concessions,
particularly on wages, and that in light of its funding position,24 there may well be very
limited capacity to make further proposals. The making of the revised wages claims by the
AFAP, which are still within the overall parameters of the original log of claims, does raise
issues as to how realistic those claims are. However, the scheme of the Act is that the parties
bargain for their agreements and they make the assessments as what is reasonable and
appropriate. In this case the AFAP is seeking to make an agreement with the RFDS by
pursuing an agreement that is sought by its Pilot members. This must of course take place
within the parameters of good faith bargaining set out in the Act and this will require the
AFAP to genuinely consider the circumstances and position of the RFDS in subsequent
negotiations.
[100] I have assessed the overall approach that has been adopted by the AFAP to the claims
it has advanced. In my view, this may be a relevant consideration when assessing whether a
bargaining representative is (still) genuinely trying to reach an agreement in the context of a
protracted negotiation. In general terms it might be expected that a party genuinely seeking to
make an agreement will revise and make concessions as part of the bargaining process.
[101] In considering a similar bargaining regime,25 Lawler VP was discussing the meaning
of “genuinely trying to reach agreement” in Liquor, Hospitality and Miscellaneous Union -
Western Australian Branch v CSBP Limited26 and observed:
“[38] Secondly, the notion of “genuinely trying to reach agreement” does not
automatically imply continual movement in the same direction by a negotiating party.
Depending upon the circumstances, a negotiating party can withdraw a concession or
offer on a particular issue in the negotiation, or renew a previously abandoned position,
and still be genuinely trying to seek agreement. Such changes of position can
legitimately arise for any number of reasons. For example changed trading conditions
may provide an entirely reasonable basis for an employer to withdraw or reduce an
offer to increase wages by a particular amount without detracting from the genuineness
with which the employer is negotiating.”
[2015] FWC 531
22
[102] I would respectfully agree with that approach. I also note that given the negotiating
room that parties may include in their opening positions, great care should be taken in
considering relative movements in positions as an indication of genuineness.
[103] In this case, the AFAP has made revised claims including now pursuing different
outcomes on matters that had previously been “agreed” during the 13 October 2014
committee meeting. In many circumstances, this conduct would raise serious concerns about
the genuineness of that party and potentially raise issues under s.228 of the Act. However, the
intervening event of the comprehensive rejection of the proposal by the Pilots, which was
based upon that “agreement”, has significantly changed the context and provides a reason for
some change in that position.
[104] Although the factual context is different, the ultimate conclusions in Ricegrowers are
apt. That is, the employees made a decision which was open to them and effectively rebuffed
the position of their representatives. In my view, these circumstances do not amount to the
AFAP, as the bargaining representative, not genuinely trying to reach an agreement. Further,
the adoption of the revised claims by the AFAP is a reversion, but for the most part,
explicable given the comprehensive rejection of the proposed agreement.
[105] The making of this application and the apparent attitude of the AFAP to the concept of
the Commission arbitrating the related dispute do not reflect upon the intent to reach an
agreement. The exercise of rights under the Act, and the preference for continuing bargaining
may not be the best options in the present context, but are not contrary indicators on the
question of the AFAP’s intent. In terms of the timing of the PABO application, the attitude of
the RFDS to the revised claims was known prior to the application and occurred in the context
of many months of prior negotiations.
[106] Having regard to the evidence before the Commission and to the overall
circumstances, and despite some concerns about elements of the AFAP’s most recent conduct,
I am on balance satisfied that the AFAP has been, and is, genuinely trying to reach an
agreement with the RFDS within the meaning of the Act.
7.3 Is ballot question 10.8 appropriate as part of the PAB?
[107] The ballot question that has been disputed by the RFDS is a follows:
“10.8 An unlimited number of bans of an unlimited duration on flying aircraft above
ground level cabin where safe to do so.”
[108] Amongst the relevant statutory requirements, the PABO must also state the question or
questions to be put to the employees who are to be balloted, including the nature of the
proposed industrial action.27
[109] This requirement has been held by the Commission in John Holland Pty Ltd v
AMWU28 to mean as follows:
“[19] Moving now to the construction of s.437 itself, seen in its statutory context, all
that the section requires is that the questions should describe the industrial action in
such a way that employees are capable of responding to them. If the questions are
[2015] FWC 531
23
ambiguous or lack clarity there may be consequences for the bargaining representative
and the employees if reliance is placed on the result of the ballot in taking industrial
action. If the question or questions give rise to ambiguity, the conclusion may be
reached that the industrial action specified in a notice under s.414 was not authorised
by the ballot and that the action is not protected for the purposes of s.409(2). It is true
that ambiguity or lack of clarity in the description of the industrial action is
undesirable, but these are matters more appropriate for consideration under other
provisions. It follows that in most cases the drafting of the questions will be a matter
for the applicant.”
[110] In Total Marine, the Full Bench also found:
“[38] The further ground of appeal relates to the nature of the questions asked.
Commissioner Thatcher concluded that the questions asked in the ballot are sufficient
to enable employees to understand the nature of the protected action they will be asked
to authorise. We believe he was correct in that view.
[39] TMS is critical of the use of the term ‘unlimited’ in relation to the particular
forms of industrial action. The precise length of any action will be determined
subsequently by the bargaining agent who organises the action and the members of the
union who choose to participate. It is inevitable that the precise timing and length of
the action is not determined at the stage of authorisation. But in voting to authorise the
action the employees would have no doubt of the outer limits of the action involved. In
our view the requirements for an application are satisfied.”
[111] I would note that subject to satisfaction with the other statutory requirements including
those discussed above, it is not the role of the Commission, at least at the PABO application
stage, to assess whether the proposed industrial action would be appropriate or reasonable in
the circumstances. It is also not the role of the Commission, provided that the questions are
capable of being understood and answered, to consider whether the questions themselves are
desirable. As indicated in John Holland, any risks associated with the drafting of the
questions are at least initially taken by the bargaining representative making the application.
[112] The phrase “ground level cabin” has a particular meaning to the Pilots of the RFDS. In
effect, it is the highest altitude that maintains the equivalent of ground level air pressure
within the cabin of the plane.29
[113] A ban on flying above that level, where safe to do so, would have an impact upon the
manner in which normal work for the Pilots was carried out. The reference to an unlimited
number and unlimited duration does mean that the precise impact of any such ban is not clear
from the question. However, in line with the approach taken in Total Marine, the ballot
question is sufficient to enable employees to understand the nature of the protected action
they will be asked to authorise. The precise terms of any action that is actually to be taken
would need to be subsequently specified, if the PABO is endorsed by the majority of relevant
AFAP members, as part of the notification of any industrial action under the Act.30
[2015] FWC 531
24
8. Conclusions and orders
[114] I found that the statutory requirements of s.443 had been met and that the proposed
PABO was in order.
[115] Accordingly, I was obliged to,31 and did, issue the PABO on 29 January 2015.
[116] I note that the RFDS has lodged an application pursuant to s.240 of the Act seeking
the Commission’s assistance to deal with the bargaining dispute. A conference will be
arranged in the near future.
Appearances:
A Molnar with J Lauchland for the Australian Federation of Air Pilots.
L Smith with S Dasan of Norman Waterhouse Lawyers, with permission, for the Royal Flying
Doctor Service of Australia Central Operations.
Hearing details:
2015
Adelaide with a video link to Melbourne
January 20.
Final written submissions:
2015
January 23 and 27.
Printed by authority of the Commonwealth Government Printer
Price code G, PR560287
[2015] FWC 531
25
1 See s.441 of the Act.
2 Royal Flying Doctors Service (Central Operations) Pilots Agreement 2010 - nominally expired on 1 July 2013.
3 The AFAP referred to NUW v ACCO Australia Pty Ltd [2009] FWA 226.
4 “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing
Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied
Services Union of Australia v Visypak Operations Pty Ltd [2006] AIRC PR974415.
5 Exhibit AFAP 1.
6 Exhibit RFDS 1.
7 Section 437, section 408 and 409 of the Act.
8 Section 414 of the Act.
9 Section 19 of the Act.
10 Section 424 of the Act.
11 Section 423 of the Act.
12 Section 418 of the Act.
13 [2009] FWAFB 368, per Watson VP, Hamberger SDP and Roberts C.
14 [2012] FCAFC 53.
15 JJ Richards & Sons Pty Ltd v Fair Work Australia [2012] FCAFC 53 at PN 58.
16 Ibid.
17 Ibid at PN 59.
18 [2010] FWA 9822.
19 The Maritime Union of Australia v Total Marine Services Pty Ltd [2009] FWA 187.
20 Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia [2014] FWCFB 1317 in citing the majority
in J.J. Richards & Sons v Transport Workers’ Union of Australia [2010] FWAFB 9963.
21 See section 182 of the Act.
22 See section 180 and section 188 of the Act and related provisions.
23 An employee organisation that is a bargaining representative may however be covered by the enterprise agreement - s.183
of the Act.
24 The evidence of Mr Vaughan in relation to the Government-funded operations.
25 Under the Workplace Relations Act 1996.
26 [2007] AIRC 112.
27 Section 443(3)(d) of the Act.
28 [2010] FWAFB 526.
29 Evidence of Mr Remilton - transcript PN155 to PN158.
30 Section 414 of the Act.
31 Section 443(1) of the Act.
