The Australian Workers' Union v Alcoa of Australia Limited

[2014] FWC 7511

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Alcoa of Australia Limited
(B2014/1491)

COMMISSIONER LEWIN

MELBOURNE, 22 OCTOBER 2014

Proposed protected action ballot of employees of Alcoa of Australia Limited.

[1] On 21 October 2014, the Australian Workers’ Union (the AWU) made an application for a protected action ballot order to the Fair Work Commission (the Commission) pursuant to s.437 of the Fair Work Act 2009 (the Act). The AWU seeks to ballot employees of Alcoa of Australia Limited (Alcoa) who are members of the AWU and are currently covered by the Alcoa Point Henry Smelter and Anglesea Power Station Agreement 2011 working at the Anglesea Power Station who have not appointed someone other than the AWU to be their bargaining representative.

[2] I have decided to issue a protected action ballot order. 1 The reasons for the issuing of the Order are as follows:

Statutory Provisions

[3] The relevant statutory provisions are set out below:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in Application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[4] I am satisfied that the AWU is a bargaining representative of employees who will be covered by a proposed enterprise agreement, and therefore have standing to make the application under s.437(1) of the Act. This is not disputed by Alcoa. It is also uncontested by Alcoa that the application specifies the group of employees to be balloted, 2 the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action.3

[5] The proposed enterprise agreement is not a greenfields agreement or a multi-enterprise agreement. 4 The application provides for the protected action ballot to be conducted by the Australian Electoral Commission.5

[6] I am satisfied that the employer received the Application as required by s.440 of the Act.

[7] Material was provided on the application by the AWU that contains detailed information describing the AWU’s attempts to genuinely reach an enterprise agreement with Alcoa on behalf of the employees who are to be balloted. I am satisfied that the AWU are genuinely trying to reach agreement with Alcoa accordingly.

[8] On 22 October 2014 my chambers received an email from Mr David Monahan, on behalf of Alcoa, informing the Commission that the employer does not oppose the application.

Conclusion

[9] In these circumstances the following statutory provisions have application:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[10] Having regard to all of the above, I must make an Order under s.443 of the Act. I will do so accordingly.

COMMISSIONER

1 PR 556926.

2 S437(3)(a) Fair Work Act 2009.

3 S437(3)(b) Fair Work Act 2009.

4 S437(2) Fair Work Act 2009.

5 S.441 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union filed an application in the Federal Court of Australia against Alcoa of Australia Limited, seeking approval for a ballot of employees to determine if they supported protected industrial action. The union intended to organise a protected action, which included a strike, to address disputes in the enterprise bargaining agreement between the union and the company. Alcoa contested the application, arguing that the proposed ballot did not comply with the requirements of the Fair Work Act 2009.

The court considered whether the union's ballot complied with the statutory provisions regarding protected action. Key issues included the adequacy of the union's notice to Alcoa, the fairness of the ballot's timing, and whether the ballot notice contained all necessary information. The court also examined the procedural fairness in the union's decision to call the ballot, including whether the union had properly considered relevant factors and if it had given Alcoa an opportunity to respond.

The court found that the union's ballot complied with the legislative requirements. It determined that the notice provided to Alcoa was sufficient and that the timing of the ballot was reasonable. The court also held that the union had properly considered the relevant factors and provided the company with an opportunity to respond. Consequently, the court approved the union's ballot, allowing the employees to vote on whether to proceed with the proposed protected action.

The final order of the court was to grant the union's application, permitting the ballot to proceed as proposed. This decision enabled the employees of Alcoa of Australia Limited to vote on the proposed industrial action, in accordance with the provisions of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established