Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Tomago Aluminium Company Pty Limited

[2025] FWC 744

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

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

Tomago Aluminium Company Pty Limited

(B2025/478)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 14 MARCH 2025

Proposed protected action ballot of employees of Tomago Aluminium Company Pty Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Tomago Aluminium Company Pty Limited (Tomago or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 14 March 2025, following discussions between the parties, the Commission was advised that the Employer did not object to the Application in an amended form. The parties communicated a consent position after an undertaking was provided by the CEPU regarding safety crew manning during periods of protected industrial action. The terms of this undertaking are set out in Annexure “A” of the revised proposed order.

Accordingly, I have granted leave to amend the application to adopt the revised proposed order and determined the application on the papers without conducting a hearing.

On the basis of the material before me, including the declaration of Bradley McDougall, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Tomago, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement and Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 28 March 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR785229.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2025/476.

[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involves an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order in relation to certain employees of Tomago Aluminium Company Pty Limited. The dispute pertains to the negotiation of an enterprise agreement, with the CEPU seeking to conduct a ballot to potentially authorise protected industrial action if an agreement cannot be reached with the employer. The Australian Manufacturing Workers’ Union (AMWU) has also filed a separate application for a ballot order concerning the same proposed enterprise agreement.

The legal issues before the Commission included whether the CEPU had met the statutory requirements for the application under section 437 of the Fair Work Act 2009, including the notification time for the proposed agreement and the necessity for a ballot. Additionally, the court needed to determine whether the employer had any objections to the application and whether the conditions for a ballot, such as the appointment of an eligible ballot agent, were satisfied. The Commission also had to decide the closing date for voting in the ballot.

The Fair Work Commission granted the CEPU leave to amend the application to reflect a revised proposed order, which included an undertaking by the CEPU regarding safety crew manning during periods of protected industrial action. The Commission was satisfied that the CEPU had genuinely attempted to reach an agreement with Tomago Aluminium Company Pty Limited and that all statutory requirements for the ballot had been fulfilled. Vero Engagement and Voting Solutions Pty Ltd was appointed as the ballot agent, having met the eligibility criteria under the Act. The Commission determined the closing date for voting in the ballot to be 28 March 2025, which also established the ballot period for conciliation purposes. A separate order was issued for the compulsory conciliation conference, which will involve all bargaining representatives in the proposed enterprise agreement.

The Commission’s decision effectively authorised the CEPU to proceed with the ballot to determine employee support for potential protected industrial action, subject to the terms and conditions outlined in the revised order. The matter will be assigned to another Member of the Commission for the conciliation conference, ensuring that all parties are prepared for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established