Australian Workers' Union v Tomago Aluminium Company Pty Ltd

[2024] FWC 3440

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Tomago Aluminium Company Pty Ltd

(B2024/1608)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 10 DECEMBER 2024

Proposed protected action ballot of employees of Tomago Aluminium Company 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 Tomago Aluminium Company Pty Ltd (Tomago or Employer).

On 9 December 2024, the Commission was advised that the Employer, in effect, did not object to the Application as amended following discussions with the parties.

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 Cameron Wright, 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 Tomago, 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 6 January 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR782251.

The parties have agreed to the inclusion of undertakings that have been given to the Commission by the AWU and requested that they be annexed to the Order. The undertakings are attached to the Order as agreed.

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, 16 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied to the Fair Work Commission for an order allowing a protected action ballot among employees of Tomago Aluminium Company Pty Ltd. The matter was heard by Deputy President Hampton in Adelaide on 10 December 2024. The Tomago Aluminium Company Pty Ltd did not object to the application, allowing the matter to be decided on the papers without a hearing. The AWU sought the ballot order to facilitate potential protected action in the context of bargaining for a new enterprise agreement.

The primary legal issue before the Commission was whether the AWU had satisfied the statutory requirements to hold a ballot for protected action. This involved verifying that the AWU had genuinely attempted to reach an agreement with Tomago Aluminium and that all procedural requirements under the Fair Work Act 2009 had been fulfilled. Specifically, the Commission had to determine if the notification period for the proposed agreement was adequate and if all conditions under section 443(1) of the Act were met.

The Deputy President concluded that the AWU had demonstrated it was genuinely attempting to reach an agreement and that all necessary conditions were satisfied. The Commission accepted the declaration from Cameron Wright, an Organiser for the AWU, which outlined the steps taken in bargaining with Tomago Aluminium. The Deputy President determined that the ballot should be conducted by Democratic Outcomes Pty Ltd, which was approved as a ballot agent under the Act. The closing date for voting was set at 6 January 2025, effectively establishing the ballot period. The parties agreed to include undertakings provided to the Commission in the final order. A compulsory conciliation conference would be conducted by another Member of the Commission, with the aim of ensuring meaningful negotiations between the parties.

The Commission issued an order granting the AWU's application for a protected action ballot and set the closing date for voting. The matter will proceed to a compulsory conciliation conference to facilitate further negotiations between the AWU and Tomago Aluminium.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established