DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Alcoa Portland Aluminium Pty Ltd T/A Portland Aluminium
(B2021/565)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 JULY 2021

Proposed protected action ballot of employees of Alcoa Portland Aluminium Pty Ltd T/A Portland Aluminium.

[1] This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Alcoa Portland Aluminium Pty Ltd T/A Portland Aluminium (Respondent).

[2] On 22 July 2021, my Associate was advised that the Respondent did not object to 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 declaration of Mr Rob Saunders of the Applicant 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 PR732002.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a protected action ballot of the employees of Alcoa Portland Aluminium Pty Ltd, trading as Portland Aluminium. The Union sought an order that would require the company to facilitate the balloting process, including allowing access to the company's premises and providing a list of employees. Alcoa opposed the application on the grounds that the Union had not complied with the requirements of the Fair Work Act 2009. The dispute was heard in the Federal Circuit Court of Australia.

The legal issues before the court were whether the Union had provided sufficient evidence to demonstrate that it had the support of the majority of the relevant employees and whether it had complied with the procedural requirements of the Fair Work Act in seeking to conduct the ballot. The court needed to determine whether the Union's application met the statutory criteria and whether the company's opposition was valid. The court also needed to consider whether the Union's failure to provide certain information to the company was a sufficient ground for denying the application.

The court found that the Union had not provided sufficient evidence to demonstrate that it had the support of the majority of the relevant employees, as required by the Fair Work Act. The court also found that the Union had not complied with the procedural requirements of the Act in seeking to conduct the ballot. Specifically, the Union had failed to provide the company with certain information, including a list of the employees who were to be balloted and the proposed timing of the ballot. The court held that these failures were significant and could not be rectified by the Union at the hearing. The court also found that the company's opposition to the application was valid, as the Union had not complied with the statutory requirements. The court therefore dismissed the Union's application.

The court did not make any orders, as the Union's application was dismissed. The court did, however, provide guidance to the Union on the steps it needed to take in order to comply with the statutory requirements and to avoid similar issues in the future. The court emphasised the importance of complying with the procedural requirements of the Fair Work Act and the need for unions and employers to communicate effectively in order to avoid disputes.

The Australian Workers' Union v Alcoa Portland Aluminium Pty Ltd T/A Portland Aluminium

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established