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

[2022] FWC 2220

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

Queensland Alumina Limited

(B2022/1245)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 AUGUST 2022

Proposed protected action ballot of employees of Queensland Alumina Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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 Queensland Alumina Limited (Respondent).

On 18 August 2022, the Fair Work Commission was advised that the Respondent neither consented nor objected to 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 Shawn Higgins of the Applicant declared on 17 August 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 PR745002.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to determine whether the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) could proceed with a protected action ballot for certain employees of Queensland Alumina Limited (the Employer). The Union sought the order under section 437 of the Fair Work Act 2009, which allows for the holding of a protected action ballot when the requirements of the Act are met and the Union has genuinely tried to reach an agreement with the Employer. The Employer neither consented nor objected to the application, prompting the Vice President to decide the matter based on the submitted documentation without holding a hearing.

The primary legal issue the Commission needed to address was whether the Union had genuinely attempted to reach an agreement with the Employer and whether the statutory notification period had been satisfied. The Union had provided a statutory declaration by Shawn Higgins, asserting that it had been genuinely trying to reach an agreement and that the necessary notification period had elapsed. The Commission had to verify these assertions against the requirements outlined in section 443(1) of the Fair Work Act.

After reviewing the material, including the statutory declaration by Shawn Higgins, the Vice President found that the Union had indeed been genuinely trying to reach an agreement with the Employer and that the notification period had been met. Consequently, the Vice President was satisfied that all conditions for proceeding with the protected action ballot had been fulfilled. An order was subsequently issued in PR745002, allowing the Union to proceed with the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established