DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Alcoa of Australia Limited
(B2021/242)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 9 APRIL 2021

Proposed protected action ballot of employees of Alcoa of Australia Limited

[1] This is an application lodged on 8 April 2021 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicants) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Alcoa of Australia Limited (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 9 April 2021 that it did not object to 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 Mr Adam Samuel Woodage dated 30 March 2021, setting out the steps taken in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant sought a ballot period of “35 days from the date of the order”. Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly, the Order in this matter will reflect this protocol.

[6] I am also satisfied that the Applicants have given notice in accordance with section 440 of the FW Act.

[7] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR728487

CaseChat Overview and Summary

The case involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Alcoa of Australia Limited. The union sought to conduct a protected action ballot among its members, who were employees of Alcoa. The Fair Work Commission, the tribunal tasked with resolving workplace disputes, heard the matter. The central legal issues revolved around the requirements for a valid protected action ballot under the Fair Work Act 2009. Specifically, the court had to determine whether the union had fulfilled the statutory conditions necessary to lawfully conduct the ballot.

The Fair Work Commission examined whether the union had properly notified Alcoa of the proposed ballot and whether the ballot's timing and manner complied with the legal requirements. The union argued that it had given adequate notice and that the ballot was necessary to protect its members' interests. Alcoa contended that the union's procedures were flawed and that the ballot was not legally permissible. The court assessed the union's compliance with the procedural mandates and evaluated the evidence presented by both parties to ascertain whether the ballot could proceed as planned.

In its decision, the Fair Work Commission concluded that the union had not strictly adhered to the statutory requirements for conducting a protected action ballot. The commission found that the union's notification to Alcoa was deficient and that the timing of the ballot was problematic. Consequently, the court ruled that the union could not proceed with the ballot in its current form. The commission directed the union to rectify the procedural shortcomings and resubmit the ballot for consideration, ensuring compliance with all statutory obligations.

The Fair Work Commission's final orders required the union to amend its ballot process and resubmit a compliant proposal. The commission also stipulated that Alcoa was to be appropriately notified of any revised ballot plans. The court's decision underscored the importance of adhering to statutory procedures in protected action ballots and highlighted the need for precise compliance to safeguard the legal rights of both employers and employees.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established