Australian Workers' Union v Altrad APTS Pty Ltd Summary

[2024] FWC 2523

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Altrad APTS Pty Ltd

(B2024/1214)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 17 SEPTEMBER 2024

Proposed protected action ballot of employees of Altrad APTS Pty Ltd

This is an application by the Australian Workers’ Union (AWU 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 Altrad APTS Pty Ltd (Altrad or Employer).

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

On 16 September 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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

On the basis of the material before me, including the declaration of Ross Kumeroa, Offshore Alliance Organiser, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Altrad, 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.

The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 2 October 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended minimum period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of 5 working days applies to the items listed within Clause five (5) of the Order.

An Order has been separately issued in PR779274.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the related matter. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2024/1216.

[2] This is, in effect, 10 working days from the making of the Order and was the period established by the Commission following consultation with the parties.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Altrad APTS Pty Ltd. The matter was heard by Deputy President Hampton of the Fair Work Commission. The AWU sought to conduct a ballot for proposed protected industrial action due to ongoing bargaining disputes with Altrad over a proposed enterprise agreement. Notably, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) also made a separate application for a ballot order concerning the same proposed agreement.

The primary legal issue the Commission needed to decide was whether the conditions for a protected action ballot order under section 437 of the Fair Work Act were met. This involved verifying if the AWU had genuinely attempted to reach an agreement with Altrad, if the notification period for the proposed agreement was appropriate, and if the requirements under section 443 of the Act were fulfilled. Additionally, the Commission needed to determine if there were exceptional circumstances justifying an extended minimum period of written notice for the industrial action as required by section 443(5) of the Act.

In determining the application, Deputy President Hampton reviewed the declaration of Ross Kumeroa, Offshore Alliance Organiser, which detailed the AWU's bargaining efforts with Altrad and confirmed their genuine attempt to reach an agreement. The Deputy President also considered the Employer's lack of objection to the Application. The Commission was satisfied that all requirements under section 443(1) of the Act had been met, including the notification time for the proposed agreement and the approval of Democratic Outcomes Pty Ltd as the ballot agent. The Deputy President then established the closing date for voting as 2 October 2024, providing a 10-working-day period from the Order's issuance. The Commission also found that exceptional circumstances justified an extended minimum period of written notice for the industrial action, resulting in a 5-working-day notice period for specific items.

The Commission issued an Order approving the protected action ballot and set the closing date for voting. This matter was assigned to another Member of the Commission for the s.448A compulsory conciliation conference, along with the related matter. The Order mandated the attendance of all bargaining representatives in the proposed enterprise agreement at the conference and likely issued directions to ensure the parties were prepared for meaningful negotiations.

Australian Workers' Union v Altrad APTS Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established