“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v South32 Worsley Alumina Pty Ltd Summary

[2022] FWC 3139

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)

South32 Worsley Alumina Pty Ltd

(B2022/1757)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 NOVEMBER 2022

Proposed protected action ballot of employees of South32 Worsley Alumina Pty Ltd

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 South32 Worsley Alumina Pty Ltd (Respondent).

On 25 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 Daniel Hannan of the Applicant declared on 23 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 PR748334.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot order concerning certain employees of South32 Worsley Alumina Pty Ltd. The AMWU sought to conduct a protected action ballot under section 437 of the Fair Work Act 2009. South32 did not oppose the application, allowing the Commission to determine the matter on the submitted documents without a hearing. The decision was made based on a statutory declaration from the AMWU stating their efforts in bargaining with South32 and their ongoing attempts to reach an agreement. The Commission was satisfied that the notification time for the proposed agreement was met, and the requirements under section 443(1) of the Act were fulfilled.

The primary legal issue before the Commission was whether the AMWU had satisfied the conditions necessary to conduct a protected action ballot under the Fair Work Act. Specifically, the Commission had to determine if the AMWU had genuinely tried to reach an agreement with South32 and if the notification time for the proposed agreement had been met. The AMWU needed to demonstrate that they had undertaken good faith bargaining with the employer, a critical prerequisite for being granted a ballot order for protected action. Additionally, the Commission needed to verify that the AMWU's application complied with the statutory requirements outlined in the Act.

The Fair Work Commission found that the AMWU had genuinely attempted to negotiate with South32 and had followed the necessary steps in good faith bargaining. The statutory declaration provided by Daniel Hannan of the AMWU supported this finding, detailing the union's efforts to reach an agreement. Furthermore, the Commission was satisfied that the notification period for the proposed agreement had been met. Given these findings, the Commission concluded that the AMWU met the requirements to conduct a protected action ballot. An order was subsequently issued, permitting the AMWU to proceed with the ballot as requested.

In light of the findings, the Fair Work Commission issued an order allowing the AMWU to conduct a protected action ballot among the employees of South32 Worsley Alumina Pty Ltd. The Commission's decision was based on the evidence of good faith bargaining efforts and compliance with the notification requirements under the Fair Work Act. The order was issued separately, as noted in PR748334, and this decision marks the conclusion of the Commission's review of the AMWU's application.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v South32 Worsley Alumina Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established