Fair Work Act 2009

s 437 - Protected action

dnata Airport Services Pty Ltd Trading AS dnata

Proposed protected action ballot of employees of dnata Airport Services Pty Ltd

• [1] This is an application by the Transport Workers' Union (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 dnata Airport Services Pty Ltd (dnata or employer).

• [2] On 30 July 2025, the Commission was advised that dnata, in effect, objected to the application insomuch as it sought an extension of the notice period to seven days in accordance with s 414(2)(b) of the Act. dnata submitted that the Commission could be satisfied that there are 'exceptional circumstances' warranting such extension. In contrast, the TWU pressed that the Commission should not be satisfied that dnata has met the 'exceptional circumstances' threshold as there was insufficient evidence.

• [3] The application was allocated to my Chambers on 30 July 2025, and noting that dnata requested to be heard on the extension of the notice period issue, I decided it was appropriate to hold a hearing on the afternoon of 31 July 2025. Prior to the hearing, dnata confirmed that whilst it had raised two other issues, it no longer sought to press them.

• [4] Briefly stated, I have declined to extend the notice period under s 443(5) of the Act. Whilst it appears to me that there are exceptional circumstances, they do not, in my view, justify the period of written notice referred to in s 414(2)(a) being longer than three working days.

• [5] On the basis of the material before me, including the declaration of Alan Bailey (Bailey), a TWU Organiser, setting out the steps taken by the TWU in bargaining with dnata and that it has been, and is, genuinely trying to reach agreement with dnata, 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.

• [6] The ballot is to be conducted by Vero Engagement and Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot.

• [7] For the purposes of s 443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 14 August 2025.[1] This also establishes the ballot period for the purpose of s 448A(2) of the Act.

• [8] An Order has been separately issued in PR790229.

• [9] The matter will be listed for a s 448A compulsory conciliation conference. An order requiring the bargaining representatives' attendance at the conference will thereafter be issued. It is likely that directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

• [10] Section 443(5) of the Act provides that the Commission can require a longer period of notice to be given (the written notice referred to in s 414(2)(a)) where it is satisfied that there are exceptional circumstances justifying this. It is acknowledged that the exercise of a discretion under s 443(5) results in an interference with the right of a bargaining representative to otherwise give three working days' written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement.[2] The Full Bench has said that this right should not be lightly curtailed by the imposition of a longer period of notice, as is evident from the grant of power itself. There must, after all, be 'exceptional circumstances' in relation to the proposed industrial action the subject of the order justifying a longer period.[3]

• [11] The Full Bench has expressed that the making of an order to extend the period of notice for the taking of protected industrial action involves a three-step process.[4] First, findings must be made about the particular fact or circumstances in relation to the proposed industrial action which are said inform the evaluative judgment that such factors or circumstances are exceptional. Second, there must be consideration whether the identified exceptional circumstances are circumstances justifying a longer notice period - an evaluative judgment made on the basis of probative material. Third, if satisfied there are exceptional circumstances justifying a longer period of notice, there must be consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances.

• [12] It is uncontroversial that the expression 'exceptional circumstances' was considered by Lawler VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation,[5] and in National Tertiary Education Industry Union v Charles Darwin University, the Full Bench concluded that the Vice President's discussion was apposite to the phrase 'exceptional circumstances justifying' in s 443(5) of the Act.[6] Therefore, the meaning attributed to the term by Lawler VP has been considered and applied in this matter.

• [13] In support of its request for an extension of the notice period, dnata relied upon the evidence of Kayleigh Aston (Aston), Manager of Operations - Perth. An abridged version of Aston's evidence follows.

• [14] Aston explained that dnata provides passenger, ramp and cargo services to 15 airlines at Perth Airport.[7]

• [15] Aston said that on any given day, dnata services approximately 14 arriving passenger flights and a similar number of departing flights, handling approximately 44,291 passengers per week.[8] dnata's provision of passenger services extends to passenger check-in and boarding activities (including the operation of aerobridges) and assisting passengers with reduced mobility who require wheelchairs and other assistance.[9] Aston noted that if an aerobridge service was not provided, passengers would be required to remain on aircrafts for extended periods which poses a health and safety risk to passengers, and there would be flow on effects in respect to delays in immigration processing and customs.[10]

• [16] In addition, dnata is said to provide ramp services which include the handling of passenger luggage and belongings (approximately 46,252 pieces per week), as well as more sensitive and critical cargo such as animals, coffins, human remains, time sensitive medicines/pharmaceuticals and medical products such as organs and blood.[11] dnata is also said to handle high volumes of perishable and temperature-controlled goods for the Perth market, including meat, frozen fish and fruit and vegetables.[12]

• [17] Aston further explained that dnata's cargo scope included the processing of domestic and international freight and all associated activities with the import/export process such as weighing freight and ensuring compliance with biosecurity requirements. That freight included standard household items and online shopping orders as well as fresh produce, weapons, radioactive materials, live animals and dangerous goods. Many of these materials and freight types are required to be moved and managed within very strict timeframes, typically 24 hours.[13]

• [18] Aston noted that all employees engaged to work at the airport are required to hold an ASIC Card and for many roles, they also require an Airside Driving Authority (ADA).[14] This therefore meant that sourcing additional labour compliant with these mandatory requirements would take additional time as it was an industry specific requirement.[15]

• [19] According to Aston, in order for dnata to mitigate the risk and impact to the public and third parties, and to ensure that its critical activities could continue to be carried out in a safe manner, it would need to engage and liaise with its client partners so they could make reasonable adjustments to flights and engage alternate labour with the requisite permits.[16] Mitigation steps with client partners would include targeted communications which may in turn lead to a requirement to make adjustments to their clients' operations and the provision of broader communications to the general public to ensure the public are able to make any necessary personal arrangements.[17]

• [20] Regarding the company's own internal process, Aston said rostering changes for existing employees and redeployment from interstate would be required.[18] Aston's evidence was that the aforementioned arrangements were not easily made based on existing workloads, flights schedules and other rostering provisions within the applicable industrial instrument to which dnata must adhere.

• [21] In support of its objection to dnata's request for an extension, the TWU relied upon the evidence of Bailey and Stanley Chawner (Chawner), Team Leader and Trainer of dnata. The following information is drawn from the evidence of both Bailey and Chawner.

• [22] Bailey explained that there were approximately 300 people employed by dnata who were going to be covered by the proposed enterprise agreement.[19]

• [23] The largest subsection of this group are people employed as passenger service employees (150 employees).[20] Their duties include check-in, assisting passengers - including assisting passengers with disabilities, and conducting checks when the incoming planes connect with the aerobridge.[21]

• [24] Bailey said the second largest subsection are ramp and baggage employees (90 employees), whose duties include loading outgoing aircraft, taking equipment such as the aerobridge out to the airplane, refilling the water in the plane and unloading waste from the airplane.[22] Amongst this group, said Bailey, are team leaders, who are responsible for groups of employees performing the work.[23]

• [25] Cargo employees are the third largest group according to Bailey.[24] Bailey said that approximately 20 workers in this subsection are either employees or labour hire. Some workers were primarily clerical workers, and some have primarily manual handling duties - for example, operating forklifts around the warehouse operated by dnata.

• [26] Turning to Aston's evidence, Bailey observed that when the TWU provided a notice of industrial action for dnata on 28 January 2025, for an agreement replacing the dnata Ramp and Cargo Enterprise Agreement 2022, three working days' notice was provided, and when the ballot was being applied for, dnata did not raise any of the concerns that it now relied upon.[25]

• [27] Bailey noted that in relation to the delivery of urgent medical supplies, it had always been the position of the TWU that it would undertake not to knowingly hinder, obstruct or impede the delivery of urgent medical supplies as a result of its members participation in protected industrial action.[26]

• [28] Further, in respect of Aston's evidence that in the event of industrial action passengers would be unable to alight from planes, Bailey stated that dnata will make reasonable adjustments to flights and engage alternative labour - noting that dnata will, by their own admission, schedule flights to land outside of any period of proposed industrial action.[27]

• [29] As to Aston's evidence that dnata required an extension in order to maintain ASIC Cards for their employees to arrange alternative labour, Bailey said that it was his estimation, based on conversations with members who have applied for ASIC Cards, as well as holding an ASIC Card himself, that an ASIC application may take up to a month to complete, and therefore extending the notice period by four extra working days will not assist dnata in acquiring ASIC Cards for their employees.[28]

• [30] Chawner explained that he performed duties in the ramp section of dnata, which involved aircraft loading and supervision, signing and cross checking all relevant paperwork and training employees for major airlines including Nippon Airways, Cathay Pacific, Air New Zealand, Texel, China Southern, Air Asia, Vietnam Airlines and Scoot.[29]

• [31] Chawner said that dnata regularly deals with time sensitive articles on the flights dnata services, but clarified:

a) live human organs (LHO) were extremely rare (Chawner having dealt with two LHO situations in ten years);

b) biological substances were more frequent, to the extent that they are received on a daily basis (for example, blood samples and tissue samples) but are mostly for universities and laboratories - and Chawner noted that the airlines value the specimens highly and would do everything possible to make sure the specimens were transferred (namely Emirates and Singapore Airlines);

c) live animals are relatively frequent (daily), but they remain under care at a cargo shed which holds the animals until 120 minutes before departure;

d) human remains and coffins are not considered common; and

• e) perishable cargo is received daily, including food, flowers and any temperature controlled article (albeit temperature controlled articles are packaged in a special way that can retain their temperature so as not to spoil for an extended period).[30]

• [32] The default position in the Act is that a minimum of three working days' written notice is required, and it is dnata that contends the existence of the exceptional circumstances justifying the extension of the minimum notice period.

• [33] It is first observed that the ballot questions in the order sought by the TWU are as follows:

In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer separately, concurrently and/or consecutively, in the form of:

1. An unlimited number of bans on the performance of work for 1 hour?

1. An unlimited number of bans on the performance of work for 2 hours?

1. An unlimited number of bans on the performance of work for 4 hours?

1. An unlimited number of bans on the performance of work for 8 hours?

1. An unlimited number of bans on the performance of work for 24 hours?

• [34] In providing their evidence and submissions, the parties did not do so by reference to the proposed ballot questions. For example, dnata did not distinguish between the steps that would be required to address a one-hour ban on the performance of work in comparison to a 24-hour ban on the performance of work.

• [35] Aston gave evidence in cross examination that flight cancellations occur regularly as do delays, whether emanating from weather conditions or engineering issues. In response to those events, Aston acknowledged that dnata has contingency plans in place for dealing with those events.

• [36] In circumstances of flight delay or cancellation, dnata has a contingency plan for managing 'sensitive cargo'. This may involve liaising with clients, and clients thereafter making alternative arrangements for the transfer of the cargo. Aston further acknowledged that at Perth Airport, other ground crew, that is ground crew from another company, also deal with sensitive cargo.

• [37] It was Aston's evidence that dnata handles high volumes of units in the perishable market, noting meat extended to 1000 units in a six-month period and fruit and vegetables equated to just over 300 units. It was further acknowledged that food could be placed into storage and that dnata would need to put temperature controls in place. I accept the evidence of Chawner that perishable items are also packaged in a special way that can retain their temperature so as not to spoil for an extended period.

• [38] In terms of the transit of live animals, dnata was said to handle approximately 190 inbound and outbound transfers over a six-month period. Aston noted that with respect to holding live animals, that would be subject to the policy of each individual airline but, in her experience, it would not be for more than two hours. Aston detailed that in respect of the transit of live animals, protected industrial action would impact its customers because it would be difficult to try and source an alternative route to receive their cargo given dnata's current market share in Perth. Evidence that addressed market share in this respect was not provided by dnata.

• [39] There was no suggestion that Aston's evidence on the number of passenger flights per day was inaccurate, and whilst unclear as to the period from which dnata had drawn the data in respect of the evidence of handling approximately 44,291 passengers per week[31] and 46,252 pieces per week of passenger luggage and belongings, I am content to find that dnata deals with high volumes of both passengers and luggage/belongings.

• [40] Regarding the impact on passengers and steps dnata could take to mitigate that impact, contrary to the evidence of Bailey who had said that dnata could schedule flights to land outside of any period of proposed industrial action, Aston's evidence was that dnata did not have authority to schedule flights.

• [41] I accept and further find that protected industrial action would impact the transit of pharmaceuticals and biological products, as detailed by Aston. As to whether all the pharmaceutical or biological products were critical in the sense that they constituted lifesaving product, I am unable to draw that conclusion on the evidence. I do, however, observe that the evidence of Aston, suggests that some were time sensitive medicines/pharmaceuticals and medical products such as organs and blood.

• [42] dnata highlighted that its location in Perth, Western Australia, essentially distinguished it from its counterparts on the East Coast of Australia. Reference was made to the lack of alternative airports through which transfers could occur and the lack of supporting infrastructure. No details were provided in respect of the lack of supporting infrastructure.

• [43] dnata pressed that sourcing alternative labour in periods of protected industrial action would prove difficult in light of the requirements for the labour to have an ASIC Card and an ADA, noting that employees from its East Coast locations were absent the required permits to work in the Perth location. Regarding the number of positions where an ADA is a requirement, this was unclear on the evidence. I do, however, accept the evidence that all employees require an ASIC Card.

• [44] The parties grappled with the point that in circumstances where protected industrial action was taken by a 'similar' cohort of employees earlier in the year on the East Coast, dnata was able to provide labour to that location through the provision of Western Australian employees. It was unclear on the evidence as to the number of dnata employees that were utilised for that purpose, and it was similarly opaque whether the permits held by employees in Western Australia were transferable to the East Coast. dnata's evidence is that its East Coast employees would not have the requisite 'permits' to work at the Perth Airport. However, Aston gave evidence that its mitigation of the impact of protected industrial action would include the utilisation of internal resources that would require rostering changes for existing employees and redeployment from interstate.

• [45] The requirement for exceptional circumstances calls for the particular facts and circumstances of a case to be considered and an evaluative judgement to be made. Whilst the TWU has referred me to the case of Transport Workers' Union of Australia v Virgin Airlines Pty Ltd and Virgin Tech Pty Limited[32] observing that the circumstances are similar to the present matter and ought to be heavily persuasive to the Commission, I am unpersuaded that is the case. Whilst the airline in that case may have raised similar concerns such as handling particular products and disruption to passengers, its circumstances in respect of its operations, contracting suppliers, contracting clients, contingent workforce, number of movements a day, ports impacted, flight schedule, flight sectors, geographical location relative to the ports, average loads, estimated passengers, mitigation steps and so on, are particular to the facts presented in each case.

• [46] In this case, it is an indubitable fact that dnata is intimately involved in the provision of an essential transport service being air travel in the port of Perth, Western Australia. The effects of a failure to provide the service can have far reaching effects on third parties. It could be said that while not unique or unprecedented, these are special circumstances that are out of the ordinary course.[33] However, there must be exceptional circumstances justifying the specification of a longer notice period. In my view there are not circumstances justifying a longer notice period based on the material adduced.

• [47] dnata essentially pressed that the timeframe needed to address an industrial campaign involving the action traversed in the ballot questions, as opposed to an unplanned disruption whether due to weather conditions or mechanical issues that it routinely encountered and dealt with, differed. However, it is to be appreciated that disruptions in service provision can occur for a variety of reasons, and the evidence suggests that dnata has contingency plans in place to mitigate some of the adverse effects within a three working days' notice period given its experience in dealing with other service interruptions.

• [48] Whilst reference was made to a lack of supporting infrastructure in Western Australia, scant detail was provided of the same. Further, notwithstanding evidence that dnata would look to resource internally to address periods of protected industrial action, and that the lack of an ASIC Card or ADA would impact its ability to utilise its employees from the East Coast, the extent of that impact is not possible to ascertain given Aston speaks of the ability to redeploy from interstate. Whilst Aston's evidence is that the arrangements cannot be easily made based on existing workloads, flight schedules and other rostering provisions, it is not the case that the arrangements cannot be made.

• [49] Aston stated that a period of three days' notice of protected industrial action would not be sufficient for dnata to adequately respond due to the nature of the industry, the unknown nature and duration of the protected action, time and complexity of sourcing alternate labour, statutory frameworks applicable to the industry and training requirements concerning ticketing. I have already addressed the two latter factors. However, as to sourcing substitute labour, dnata's total employee workforce within Australia is unclear as are the limitations imposed by statutory frameworks other than those mentioned. It appears redeployment from other States is a viable option and, as was aptly identified by Bailey, whether the notice period is three working days or seven working days - this would not appear, based on the evidence, to have a bearing on the ability to secure an ADA or ASIC Card - both of which appear to take some time to obtain. Further, it is apparent that at Perth Airport there is another provider of the services that dnata provides - albeit to other airlines.

• [50] The purpose of the notice period is to enable the industrial disputants 'to take appropriate defensive action'. Appropriate defensive action might include an employer using the time to communicate with suppliers and customers thereby reducing the consequences for them of the industrial action.[34]

• [51] The nature of the industry is one that is susceptible to the interruption of service provision for a variety of reasons and as such dnata acknowledges that it has contingency plans in place to address such disruptions. Whilst dnata is unable to predict with precision the timing of protected industrial action until the requisite notice is given, it is, nevertheless on notice, that at some point such protected industrial action may be taken, and similar to the unpredictability that arises from the weather, mechanical disruption, inadequate fuel supply or technical failures, it is, based on the evidence, able to put in place a contingency plan to mitigate impact thereby reducing the consequences for it of the industrial action.

• [52] I accept that the protected industrial action involving a stoppage of work is likely to have some form of impact on dnata and third parties regardless of the length of the notice period. Whilst dnata's evidence is that a longer period of notice will give it the opportunity to reorganise rosters which could reduce the impact of the stoppage but not eliminate it, it remains that this will impact the effectiveness of the action in supporting the claims of TWU members. The extension of the notice period sought by dnata of the maximum period of seven working days across all forms of protected industrial action on the ballot will, in my view, nullify the impact of at least some of the protected industrial action described, by allowing dnata to ensure that the impact is minimal.

• [53] On balance, and for the reasons provided, the extension to the notice period is not granted.

[1] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

[2] National Tertiary Education Industry Union v Charles Darwin University [2018] FWCFB 4011 (NTEU).

[4] Application by Australian Rail, Tram and Bus Industry Union [2021] FWC 4391 [209].

[5] [2007] AIRC 848; (2007) 167 IR 4.

[7] Exhibit R1 - Witness Statement of Kayleigh Aston (Exhibit R1) [9].

[19] Exhibit A2 - Witness Statement of Alan John Bailey, [9].

[29] Exhibit A1 - Witness Statement of Stanley Chawner, [3]-[4].

[32] [2023] FWC 2894.

[34] Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463.

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