Australian Workers' Union v RTA Gove Pty Ltd T/A Rio Tinto Aluminium Limited

[2022] FWC 3026

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

RTA Gove Pty Ltd T/A Rio Tinto Aluminium Limited

(B2022/1702)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 NOVEMBER 2022

Proposed protected action ballot of employees of RTA Gove Pty Ltd t/as Rio Tinto Aluminium Limited

This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of RTA Gove Pty Ltd T/A Rio Tinto Aluminium Limited (Respondent).

On 14 November 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Darren Lee of the Applicant declared on 10 November 2022, setting out the steps taken by it in bargaining with the Respondent and 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 s.443(1) of the Act have been met.

An Order has been separately issued in PR747935.

VICE PRESIDENT

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 with the Fair Work Commission seeking an order for a protected action ballot for certain employees of RTA Gove Pty Ltd, trading as Rio Tinto Aluminium Limited. The dispute involved the union's attempt to organise a ballot for protected industrial action due to ongoing negotiations with the employer over an agreement. The respondent, RTA Gove Pty Ltd, did not oppose the application, and thus the Vice President, Catanzariti, determined the matter on the submitted documentation without necessitating a hearing. The union's application for the ballot order hinged on its demonstration that it had been genuinely attempting to reach an agreement with the employer and that the statutory notification period for the proposed agreement had been met.

The primary legal issue before the Vice President was whether the union had satisfied the prerequisites for a protected action ballot as outlined in the Fair Work Act 2009. Specifically, the court needed to ascertain if the union had genuinely tried to negotiate with the employer and if the statutory notification period had been appropriately observed. The union substantiated its application through the statutory declaration of Darren Lee, which detailed the union's efforts in bargaining and compliance with the notification period. The respondent's lack of opposition to the application also played a role in the Vice President's decision-making process.

Upon reviewing the provided documentation, including the statutory declaration from the union, the Vice President found that the union had indeed been genuinely attempting to negotiate with the employer and that the statutory notification period had been adhered to. The Vice President concluded that the union met the requirements set forth in section 443(1) of the Fair Work Act 2009, thereby granting the union's application for a protected action ballot. The decision was rendered without a hearing due to the respondent's non-opposition and the comprehensive documentation submitted by the union.

The Fair Work Commission issued an order in PR747935, permitting the Australian Workers’ Union to proceed with the protected action ballot for the employees of RTA Gove Pty Ltd, trading as Rio Tinto Aluminium Limited. This order was made in light of the union's compliance with the legal requirements and the respondent's non-opposition to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established