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

[2023] FWC 837

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

Tomago Aluminium Company Pty Ltd

(B2023/310)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 APRIL 2023

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

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).

On 5 April 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 Bradley McDougall of the Applicant declared on 30 March 2023, 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 PR760928.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which sought a protected action ballot order in relation to employees of Tomago Aluminium Company Pty Ltd. The union's application was made under section 437 of the Fair Work Act 2009, and the matter was determined without a hearing due to the absence of opposition from the respondent. The union aimed to hold a ballot to gauge employee support for potential protected actions, given the ongoing negotiations with the company.

The legal issues before the court involved whether the union had genuinely attempted to reach an agreement with the employer and if the statutory notification period had been met. The union presented a statutory declaration by Bradley McDougall, outlining their efforts in bargaining and their genuine attempts to reach an agreement. The court's task was to assess the union's efforts and the compliance with the legal requirements to determine if the conditions for a ballot were satisfied.

The court examined the union's declaration and the surrounding circumstances, ultimately concluding that the union had genuinely tried to negotiate with the employer and that the statutory notification period had been adhered to. Based on these findings, the Vice President Catanzariti was satisfied that the requirements of section 443(1) of the Act were met. Consequently, the court decided to grant the union's application for a protected action ballot order.

As a result of the court's decision, an order was issued allowing the union to proceed with the ballot among the employees of Tomago Aluminium Company Pty Ltd. This decision underscores the importance of genuine negotiation efforts and compliance with statutory requirements in the context of protected industrial action under the Fair Work Act.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established