Australian Workers' Union, The v Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove

[2022] FWC 2619

[2022] FWC 2619

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union, The
v

Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove

(B2022/1446)

COMMISSIONER RIORDAN SYDNEY, 28 SEPTEMBER 2022

Proposed protected action ballot by employees of Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove.

1. On 23 September 2022, The Australian Workers’ Union (the AWU) made an application for a Protected Action Ballot Order (PABO) in accordance with section 437 of the Fair Work Act 2009 (the Act).

1. The AWU seeks a PABO in relation to employees of (the Respondent) employed at Rio Tinto Alcan Grove engaged in any work who are members of the AWU who would be subject to the proposed enterprise agreement and for whom the AWU is the bargaining representative.

1. On 28 September 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

Statutory Provisions

1. The relevant provision of the Act in relation to this application are:

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.

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

(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.

Conclusion

1. On the basis of the material before me, including the statutory declaration of Darren Lee of the AWU declared on 23 September 2022, I am satisfied that the requirements in s.443(1) of the Act have been met.

1. An Order has been separately issued in PR746265.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

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