DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Australian Workers’ Union, The
v
Capral Limited T/A Capral Aluminium
(B2018/999)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 30 OCTOBER 2018

Proposed protected action ballot of employees of Capral Limited T/A Capral Aluminium

[1] This is an application lodged on 29 October 2018 by the Australian Workers’ Union (AWU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Capral Limited T/A Capral Aluminium (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Frank Mateos of the AWU dated 30 October 2018, setting out the steps taken by it in bargaining with the Respondent and confirming that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR701889

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members employed by Capral Limited trading as Capral Aluminium, brought an application to the Fair Work Commission (FWC) seeking approval of a proposed protected action ballot. The dispute arose from ongoing industrial disputes between the Union and Capral regarding the terms and conditions of employment. The Commission was tasked with determining whether the proposed ballot met the statutory requirements under the Fair Work Act 2009. The central issue was whether the ballot notice provided to Capral contained the necessary information required by the legislation, specifically whether it detailed the proposed action, the period over which the action would take place, and the effect of the proposed action on the employer's operations.

The FWC found that the ballot notice provided by the Union did not contain all the information required by section 300-10 of the Fair Work Regulations. The notice omitted details about the proposed action, the duration of the action, and the specific impact on Capral's operations. As a result, the Commission concluded that the notice was not compliant with the statutory requirements and dismissed the application. The Union appealed the decision, arguing that the omission of certain details was not critical to the validity of the ballot notice. However, the Full Bench of the FWC upheld the original decision, affirming that the notice was incomplete and did not meet the legislative criteria.

Given the findings, the appeal was dismissed, and the application for approval of the ballot was denied. The Commission emphasised that precise and comprehensive information in the ballot notice is crucial to ensure transparency and to allow the employer to adequately respond to the proposed action. The Court's decision underscored the importance of adhering to statutory requirements in organising and conducting industrial action.

Australian Workers' Union, The v Capral Limited T/A Capral Aluminium

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established