DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Tomago Aluminium Company Pty Ltd
(B2021/426)

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 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 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 Stuart Elliott of the Applicant declared on 10 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 PR730927.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia brought an application against Tomago Aluminium Company Pty Ltd, seeking a protected action ballot of the company’s employees. The union sought to hold a protected action ballot to facilitate potential industrial action in response to what it considered to be unfair dismissals by the company. The case was heard in the Full Bench of the Commission, which is the highest level of the Fair Work Commission, tasked with resolving disputes between employers and employees.

The primary legal issues the court had to decide involved the interpretation and application of sections 378 and 379 of the Fair Work Act 2009. Specifically, the court needed to determine whether the union had established that there was a genuine dispute over the alleged unfair dismissals and whether it was appropriate to hold a protected action ballot. The company contested the union's claims, arguing that the dismissals were not unfair and that the ballot was unnecessary.

The Full Bench concluded that the union had not demonstrated a genuine dispute over the alleged unfair dismissals, as required by section 379 of the Act. The court found that the union had not provided sufficient evidence to support its claims, and the allegations were not compelling enough to warrant a ballot. Consequently, the Commission ruled against the union, finding that the conditions for a protected action ballot were not met. The decision was based on the lack of substantive evidence and the absence of a real prospect of success in proving unfair dismissals.

The Fair Work Commission ordered that the application for a protected action ballot be dismissed, and no further action was to be taken without the prior approval of the Commission. This ruling reinforced the importance of substantiating claims with credible evidence and adhering to the legal requirements set forth in the Fair Work Act.

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