| PR714350 |
| FAIR WORK COMMISSION |
ORDER |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Federation of Air Pilots
v
Jetstar Airways Pty Limited T/A Jetstar Airways
(B2019/1303)
DEPUTY PRESIDENT GOSTENCNIK |
MELBOURNE, 18 NOVEMBER 2019 |
Proposed protected action ballot of employees of JetStar Airways Pty Limited.
Pursuant to s.443 of the Fair Work Act 2009 (the Act) the Fair Work Commission orders:
1. PROTECTED ACTION BALLOT TO BE HELD
The Australian Federation of Air Pilots (AFAP) is to hold a protected action ballot of employees of Jetstar Airways Pty Limited T/A Jetstar Airways described in clause 3 of this order.
2. NAME OF PERSON AUTHORISED TO CONDUCT THE BALLOT
The ballot is to be conducted by Elections Australia Pty Ltd (Agent). The contact details of the Agent are:
Elections Australia Pty Ltd
P.O Box 329, Roseville NSW 2069
(02) 9416 9627
mail@myvote.com.au
3. GROUP OR GROUPS OF EMPLOYEES TO BE BALLOTED
In accordance with s.437(5) of the Act, the employees to be balloted are those who are employed as pilots who are members of the AFAP and who will be covered by the proposed enterprise agreement.
4. DATE BY WHICH BALLOT CLOSES
The date by which voting in the protected action ballot is to close is 18 days from the date of this order.
5. QUESTIONS
The question(s) to be put to voters in the ballot are:
Do you for the purpose of advancing claims in respect of the proposed enterprise agreement with Jetstar Airways, support protected industrial action in the form of:
1. An unlimited number of indefinite or periodic bans on working on any of the following days:
a. designated days off;
b. duty free days;
c. annual leave days, and;
d. long service leave days?
Yes [ ] No [ ]
2. An unlimited number of indefinite or periodic bans on using company iPad outside of stipulated duty times (sign-on to sign-off), this includes any downloading of any company or Jeppesen updates, flight plans, software or application updates?
Yes [ ] No [ ]
3. An unlimited number of indefinite or periodic bans on conducting pre-flight duties prior the normal sign-on time for a flight duty period, this includes: downloading, reading or printing of Flight Plans; downloading, reading or printing of Weather, Notam’s, FSO’s, INTAP’s?
Yes [ ] No [ ]
4. An unlimited number of indefinite or periodic bans on reduced thrust operations (for take off)?
Yes [ ] No [ ]
5. An unlimited number of indefinite or periodic bans on using idle reverse thrust for landing in an aircraft with a serviceable reverse thrust system?
Yes [ ] No [ ]
6. An unlimited number of indefinite or periodic bans on ground power unit (GPU) usage in aircraft with a serviceable auxiliary power unit (APU)?
Yes [ ] No [ ]
7. An unlimited number of indefinite or periodic bans on operating an aircraft from a pilot’s home base with a deferred defect as outlined in the aircrafts’ minimum equipment list?
Yes [ ] No [ ]
8. An unlimited number of indefinite or periodic bans on answering phone calls from Jetstar crewing except whilst on standby or during a reassignable contactable period as stipulated in clause 15.1.4 and 15.2.7 of the Roster Protocol?
Yes [ ] No [ ]
9. An unlimited number of indefinite or periodic bans on signing onto Crew Web Portal (CWP) for the purpose of accepting any duty changes?
Yes [ ] No [ ]
10. An unlimited number of indefinite or periodic bans on the performance of any duty that is not on the pilot’s originally published roster, excluding rostered standby?
Yes [ ] No [ ]
11. An unlimited number of indefinite or periodic bans on extending the flight duty limitations contained in clauses 2.5 and 3.5 of the CAO48 exemption as contained in OM1?
Yes [ ] No [ ]
12. An unlimited number of indefinite or periodic bans on the performance of any duty off standby where the combination of standby plus assigned FDP exceeds the maximum allowable FDP contained in the CAO48 exemption by more than 4 hours?
Yes [ ] No [ ]
13. An unlimited number of indefinite or periodic bans on extending a single or multi-day tour of duty beyond the times stipulated in clause 15 of the Roster Protocol?
Yes [ ] No [ ]
14. An unlimited number of single or consecutive four (4) hour stoppages of all work?
Yes [ ] No [ ]
15. An unlimited number of single or consecutive twenty -four (24) hour stoppages of all work?
Yes [ ] No [ ]
6.1 The ballot is to be conducted by electronic voting and voting must take place in compliance with the Act, the Fair Work Regulations 2009 (Regulations) and this Order.
6.2 Pursuant to s.450 of the Act, the Agent is to conduct the protected action ballot in accordance with the following directions:
General
6.2.1 In any email communications to the Employer, Union or the Fair Work Commission, the Agent will include Deputy President Gostencnik’s Associate at Chambers.Gostencnik.DP@fwc.gov.au, Deanna Cain at deanna@afap.org.au and David Probert at david.probert@jetstar.com. The Agent will also provide to these parties the content of any proposed employee communications before they are sent to employees including, but not limited to, the communications referred to in this Order.
Timetable
6.2.2 The Agent will commence the ballot 5 working days after being provided the list of voters pursuant to paragraph 9.2 of this Order (Commencement Date) and will not commence the ballot before the Commencement Date.
6.2.3 The ballot will close 18 days from the date of this order pursuant to paragraph 4 of this Order and will not close earlier.
Voting method
6.2.4 The ballot will be held electronically.
The Agent will design a voting website on a secure sever which will allow eligible voters to vote in the ballot.
The Agent will allocate to each eligible voter on the list of voters a unique identifier, being a randomly generated internet voting password, to access and vote on the website.
Just prior to the opening of the ballot the Agent will issue to eligible voters an Instruction Sheet. The Instruction Sheet will contain the web address for the voting website, each eligible employee’s randomly generated internet voting password, instructions on how to vote and any other material the Agent considers relevant.
The Agent will issue the Instruction Sheet to each employee’s email address, where provided. Additionally, the Agent will send an SMS to any mobile number for that eligible voter, where a mobile phone has been provided.
For any eligible employees without an email address or mobile phone number, the Agent will send the Instruction Sheet by mail to that employee’s home postal address.
For any eligible voters who are identified in the list provided by the employer as on leave for the whole period from the date of the order to the date the ballot closes, and who do not have a home email address or mobile phone number, the will send the Instruction Sheet by mail to that employee’s home postal address.
The Agent will ensure the voting website will only be accessible for voting in the ballot by eligible voters.
The Agent will ensure that the operation of the internet voting system provides that an authenticated voter may cast only one vote in the ballot.
Updates to the list of voters
6.2.5 After the Commencement Date, the Employer will provide the Agent with a daily list of its employees that have ceased employment. If any of these employees are on the list of voters, their internet voting password to vote in the ballot will be disabled.
Other matters
6.2.6 The Agent will provide an undertaking to the Employer and the Fair Work Commission via Deputy President Gostencnik's Associate that no ballot results will be provided to any party, including the Union, until all votes have been received and the ballot has been closed. For the avoidance of doubt, this direction does not apply to disclosures made to the scrutineers appointed pursuant to paragraph 12 of this Order.
6.2.7 Once all votes have been received and the ballot is closed, the Agent will prepare and file with Deputy President Gostencnik's Associate a statutory declaration confirming that no ballot results were disclosed prior to the ballot closing and all votes were received, save for disclosures made to the scrutineers appointed pursuant to paragraph 12 of this Order.
7.1 The Employer is to provide to Deputy President Gostencnik's Associate by 4:00pm on the third working day after the day the Order is issued a list of its employees (as at the date of the Order), being a list that includes all of the employees who would be covered by the proposed enterprise agreement, in the following format:
7.1.1 The list is to be provided in the form of a Microsoft Excel compatible spreadsheet in a file named “Jetstar – Employee List”.
7.1.2 The list is to be in alphabetical order of surname.
7.1.3 The list is to contain the information (if known) for each employee who would be covered by the proposed enterprise agreement as indicated by those column names set out below:
Column 1 |
Surname |
Column 2 |
First Name |
Column 3 |
Middle Name |
Column 4 |
Date of Birth |
7.2 The list is to be provided Deputy President Gostencnik's Associate at Chambers.Gostencnik.DP@fwc.gov.au.
7.3 The list must be accompanied by a declaration in accordance with Regulation 3.15 of the Regulations.
7.4 The Employer may provide a list of employees to Deputy President Gostencnik's Associate by way of encrypted or password protected email that is accessible by Deputy President Gostencnik's Associate.
8.1 The Union is to provide to Deputy President Gostencnik's Associate by 4:00pm on the third working day after the day the Order is issued a list of its members (as at the date of the Order) employed by the Employer in the following format:
8.1.1 The list is to be provided in the form of a Microsoft Excel compatible spreadsheet in a file named “AFAP – Member List”.
8.1.2 The list is to be in alphabetical order of surname.
8.1.3 The list is to contain the information (if known) for each member who would be covered by the proposed enterprise agreement as indicated by those column names set out below:
Column 1 |
Surname |
Column 2 |
First Name |
Column 3 |
Middle Name |
Column 4 |
Email Address |
Column 5 |
Postal – Address 1 |
Column 6 |
Postal – Address 2 |
Column 7 |
Postal - State |
Column 8 |
Postal - Postcode |
Column 9 |
Date of Birth |
Column 10 |
Union Membership Number |
Column 11 |
Mobile Phone Number |
8.2 The list is to be provided Deputy President Gostencnik's Associate at Chambers.Gostencnik.DP@fwc.gov.au.
8.3 The list must be accompanied by a declaration in accordance with Regulation 3.15 of the Regulations.
8.4 The Union may provide a list of employees to Deputy President Gostencnik's Associate by way of encrypted or password protected email that is accessible by the Deputy President Gostencnik's Associate.
9.1 Once the Union and the Employer have provided their respective employee and member lists to Deputy President Gostencnik's Associate pursuant to this Order, Deputy President Gostencnik's Associate will provide the list to the Agent at the address mail@myvote.com.au so that the Agent can finalise the list of voters.
9.2 The Agent is to finalise the list of voters using its discretion. If there is any doubt as to who is to be included on the list, then the Agent will email Deputy President Gostencnik's Chambers copying in the representatives of the Union and the Employer so that the parties can confer with a view to resolving the issue.
10.1 The Agent will compile a timetable in accordance with the Act and the Directions outlined in paragraphs 6.2.1, 6.2.2 and 6.2.3 of this Order.
11.1 The Union and the Employer are to comply as quickly as is reasonably practicable with any reasonable request made pursuant to the Act or the Regulations for information or assistance made by the Agent.
11.2 The Employer shall facilitate the email delivery of ballot related notices, information, or other materials to all employees by whitelisting the domain utilised by the Agent.
11.3 The Employer shall allow access to the voting web site from all employees’ places of work and accommodation by whitelisting the site across the Employer’s internet network.
11.4 Where the Employer does not manage the IT networks that employees may use to vote they will do all that is practicable to ensure that Orders 11.2 and 11.3 are complied with.
12.1 The Union and the Employer are to comply with the provisions contained in the Regulations and to notify in writing to the Agent the names of any scrutineer(s) that they propose to authorise to attend the conduct of the ballot.
12.2 Any notification of the appointment of any scrutineer(s) must be served on the other party. Should the other party object to the appointment of any scrutineer(s), then that party is able to apply to the Fair Work Commission to have its objection heard and determined.
12.3 The functions of any scrutineer(s) appointed pursuant to this clause will only occur once all votes have been received, the ballot has closed, but before any ballot result is declared.
13.1 The Agent may, on request, report to either the Employer or the Union the participation rate as at the close of the previous business day after the end of the first day of voting.
13.2 The Protected Action Ballot Agent shall report the results of the protected action ballot as soon as practicable after the close of voting to the Union, the Employer and the Fair Work Commission.
14.1 Both the Employer and the Union have liberty to apply in the event there is non-compliance with any of the terms of this Order.
14.2 Should a dispute arise regarding who is to be included on the list of voters, both the Employer and the Union will have liberty to apply to resolve the dispute.
15.1 For the purposes of this Order, "working day(s)" has the meaning provided for in the Fair Work Act 2009 (Cth).
DEPUTY PRESIDENT
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