“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove

[2022] FWC 3080

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v

Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove

(B2022/1720)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 NOVEMBER 2022

Proposed protected action ballot of employees of Rio Tinto Aluminium Limited

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (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 Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove (Respondent).

On 17 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 Lloyd Pumpa of the Applicant declared on 14 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 PR748129.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, presided over by Vice President Catanzariti, was presented with an application under section 437 of the Fair Work Act 2009 by the Australian Manufacturing Workers’ Union (AMWU) for an order permitting a protected action ballot. The application, numbered B2022/1720, was made against Rio Tinto Aluminium Limited, trading as Rio Tinto Alcan Gove. The AMWU sought to conduct a ballot among its members regarding potential protected action due to ongoing negotiations with the company. Rio Tinto Aluminium Limited did not oppose the application, leading to the Commission's decision to proceed with the matter based on the submitted documents without necessitating a hearing.

The legal issues at the heart of this case revolved around the AMWU's right to conduct a ballot under section 437 of the Fair Work Act, contingent upon meeting the statutory criteria. The Commission was required to determine whether the AMWU had genuinely attempted to reach an agreement with Rio Tinto Aluminium Limited and if the notification period stipulated in section 443(1) of the Act had been satisfied. These criteria are critical to establishing the legitimacy and procedural correctness of the union's proposed action.

Upon reviewing the materials, including a statutory declaration from Lloyd Pumpa of the AMWU, Vice President Catanzariti concluded that the union had indeed been earnestly negotiating with the company. The declaration detailed the steps taken by the union in their bargaining process and confirmed that the union had been genuinely attempting to reach an agreement. Additionally, the Commission found that the notification period for the proposed agreement had been met, fulfilling the statutory requirements. Consequently, the application was approved, and an order permitting the ballot was issued.

In summary, the Fair Work Commission granted the AMWU's application for a protected action ballot, recognising the union's efforts in good faith negotiations and the adherence to statutory notification requirements. The decision was made without a hearing due to the absence of opposition from Rio Tinto Aluminium Limited. The formal order was issued separately, formalising the authorisation for the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established