Australian Workers' Union v Australian Aluminium Finishing Pty Ltd Summary

[2024] FWC 1788

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Australian Aluminium Finishing Pty Ltd

(B2024/858)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 8 JULY 2024

Proposed protected action ballot of employees of Australian Aluminium Finishing 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 Australian Aluminium Finishing Pty Ltd (AAF or Employer).

On 8 July 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 Jimmy Mastrandonakis, Assistant Secretary, 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 AAF, 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 26 July 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in 776788.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. 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] This is, in effect, 14 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (AWU) sought a protected action ballot order under section 437 of the Fair Work Act 2009 (Act) in relation to employees of Australian Aluminium Finishing Pty Ltd (AAF). The AWU applied to the Fair Work Commission (FWC) for the order. The employer did not object to the application, leading the Deputy President to determine the matter without a hearing. The AWU had been attempting to reach an agreement with AAF, and the Commission was satisfied that all requirements under section 443(1) of the Act were met.

The legal issues before the Court involved whether the AWU had genuinely tried to reach an agreement with AAF, whether a notification time for the proposed agreement existed, and whether the requirements under section 443(1) of the Act were fulfilled. Additionally, the Court had to determine the closing date for voting in the ballot, as well as the timing of the compulsory conciliation conference under section 448A of the Act. The AWU had provided a declaration from Jimmy Mastrandonakis, Assistant Secretary, confirming the steps taken in bargaining and the union's genuine efforts to reach an agreement.

The Deputy President found that the AWU had indeed been genuinely trying to reach an agreement with AAF. The notification time for the proposed agreement was established, and all requirements under section 443(1) of the Act were satisfied. The Court determined that voting would close on 26 July 2024, effectively setting the ballot period. The ballot would be conducted by Democratic Outcomes Pty Ltd (CiVS), an approved agent under section 468A of the Act. The matter was assigned to another Member of the Commission to conduct the compulsory conciliation conference under section 448A of the Act, with an Order to be issued requiring the attendance of bargaining representatives. The Court also noted that Directions would likely be issued to ensure meaningful negotiations at the conference.

The Court issued an Order granting the AWU's application for a protected action ballot order, setting the closing date for voting as 26 July 2024. The matter was assigned to another Member of the Commission to conduct the compulsory conciliation conference, with an Order requiring the attendance of all bargaining representatives. Directions were also issued to ensure the parties attended the conference ready to conduct meaningful negotiations.

Australian Workers' Union v Australian Aluminium Finishing Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established