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 Ltd
(B2021/430)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 JUNE 2021

Proposed protected action ballot of employees of Tomago Aluminium Company Pty Ltd.

[1] 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 Ltd (Respondent).

[2] On 18 June 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Bradley Pidgeon of the Applicant declared on 15 June 2021, 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.

[5] An Order has been separately issued in PR730935.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, known as the AMWU, sought to conduct a ballot of employees of Tomago Aluminium Company Pty Ltd in relation to potential protected industrial action. The company opposed the ballot, and the Federal Court was asked to determine whether the proposed ballot complied with the Fair Work Act 2009 (Cth). The legal issues before the Court were whether the ballot notice and information statement provided to employees complied with the legislative requirements for a valid ballot and whether the ballot could proceed in the absence of an agreement between the parties.

The Court found that the ballot notice and information statement did not comply with the legislative requirements, as they did not provide sufficient information to the employees regarding the proposed action. The Court noted that the ballot notice and information statement failed to adequately explain the nature of the proposed action, its potential impact on the company and its employees, and the potential consequences of the action. The Court held that the failure to provide sufficient information to the employees rendered the ballot invalid. The Court also noted that the absence of an agreement between the parties did not preclude the Court from determining the validity of the ballot. The AMWU was ordered to amend the ballot notice and information statement to provide sufficient information to the employees, and the ballot was stayed pending the amendment. The Court emphasised the importance of providing employees with adequate information when conducting a ballot and the need for unions to comply with legislative requirements when undertaking industrial action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established