"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Tomago Aluminium Company Pty Limited

[2023] FWC 807

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

Tomago Aluminium Company Pty Limited

(B2023/298)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 APRIL 2023

Proposed protected action ballot of employees of Tomago Aluminium Company Pty 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 Tomago Aluminium Company Pty Limited (Respondent).

On 31 March 2023, 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 Bradley Pidgeon of the Applicant declared on 30 March 2023, 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 PR760839.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order regarding certain employees of Tomago Aluminium Company Pty Limited. The dispute arose from a proposed agreement that the union intended to ballot its members on. The respondent company did not oppose the application, leading to the matter being determined on the papers without a hearing. The Vice President of the Fair Work Commission, Catanzariti, issued the decision on 3 April 2023.

The primary legal issue before the court was whether the AMWU had met the requirements set out in section 443(1) of the Fair Work Act 2009, which stipulates the conditions that must be fulfilled for a protected action ballot to be lawful. This involved verifying that the union had genuinely attempted to reach an agreement with the employer and that there was a notification time in relation to the proposed agreement. The decision hinged on the evidence provided by the union, specifically a statutory declaration from Bradley Pidgeon, which detailed the union's bargaining efforts and compliance with the statutory requirements.

Upon reviewing the material presented, including the statutory declaration, the Vice President found that the AMWU had indeed been genuinely trying to reach an agreement with Tomago Aluminium Company Pty Limited and that the notification time had been met. The union's efforts to negotiate and its compliance with the statutory obligations were deemed sufficient under the Act. Consequently, the application for a protected action ballot order was granted.

An order was issued separately in PR760839, allowing the AMWU to proceed with the protected action ballot as per the provisions of the Fair Work Act 2009. The decision underscores the importance of the union's efforts in good faith bargaining and the procedural requirements necessary to conduct a lawful ballot under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established