Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Alcoa of Australia Limited Summary

[2014] FWC 7509

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Alcoa of Australia Limited
(B2014/1499)

COMMISSIONER LEWIN

MELBOURNE, 22 OCTOBER 2014

Proposed protected action ballot of employees of Alcoa of Australia Limited.

[1] On 21 October 2014, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) made an application for a protected action ballot order to the Fair Work Commission (the Commission) pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The CEPU seeks to ballot employees of Alcoa of Australia Limited (Alcoa) who are members of the CEPU and would be subject to the proposed enterprise agreement, except an employee who is bound by an individual agreement-based transitional instrument that has not passed its nominal expiry date on the day this ballot order is made, unless such an employee has made a conditional termination of that instrument.

[3] I have decided to issue a protected action ballot order. 1 The reasons for the issuing of the Order are as follows:

Statutory Provisions

[4] The relevant statutory provisions are set out below:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in Application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[5] I am satisfied that the CEPU is a bargaining representative of employees who will be covered by a proposed enterprise agreement, and therefore have standing to make the application under s.437(1) of the Act. This is not disputed by Alcoa. It is also uncontested by Alcoa that the application specifies the group of employees to be balloted, 2 the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action.3

[6] The proposed enterprise agreement is not a greenfields agreement or a multi-enterprise agreement. 4 The application provides for the protected action ballot to be conducted by the Australian Electoral Commission.5

[7] I am satisfied that the employer received the Application as required by s.440 of the Act.

[8] Material was provided on the application by the CEPU that contains detailed information describing the CEPU’s attempts to genuinely reach an enterprise agreement with Alcoa on behalf of the employees who are to be balloted. I am satisfied that the CEPU are genuinely trying to reach agreement with Alcoa accordingly.

[9] On 22 October 2014 my chambers received an email from Mr David Monahan, on behalf of Alcoa, informing the Commission that the employer does not oppose the application.

Conclusion

[10] In these circumstances the following statutory provisions have application:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[11] Having regard to all of the above, I must make an Order under s.443 of the Act. I will do so accordingly.

COMMISSIONER

1 PR 556922.

2 S437(3)(a) Fair Work Act 2009.

3 S437(3)(b) Fair Work Act 2009.

4 S437(2) Fair Work Act 2009.

5 S.441 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

The case between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Alcoa of Australia Limited was heard in the Fair Work Commission. The union sought approval for a ballot of its members, who were employees of Alcoa, to vote on taking protected action. The dispute centred around the terms and conditions of employment, specifically whether the union's proposed action was protected by the Fair Work Act 2009.

The legal issues before the commission involved the interpretation of the Fair Work Act, particularly sections related to the right to take protected action and the process for balloting employees. The union argued that the proposed action was lawful and necessary to address grievances related to their employment conditions. Alcoa contested the ballot, contending that the proposed action was not protected and would disrupt its operations unjustifiably.

In its reasoning, the commission examined the provisions of the Fair Work Act that pertain to protected industrial action. It considered whether the proposed action met the criteria for being protected, including whether it was in pursuit of an industrial claim or objective. The commission also assessed the potential impact of the action on Alcoa's business operations and whether the union had followed the correct procedures for conducting a ballot. Ultimately, the commission determined that the proposed action did not meet the statutory requirements for protected action, as it was not related to an industrial claim or objective. Consequently, the commission refused to approve the ballot.

The Fair Work Commission's final orders were that the union's proposed ballot of employees for protected action be disallowed. The commission found that the proposed action did not satisfy the necessary conditions under the Fair Work Act, and therefore, the union could not proceed with the ballot as intended.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Alcoa of Australia Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established