DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Australian Aluminium Finishing Pty Limited
(B2015/398)

COMMISSIONER RYAN

MELBOURNE, 31 MARCH 2015

Proposed protected action ballot of employees of Australian Aluminium Finishing Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by The Australian Workers’ Union for a protected action ballot order in relation to employees of Australian Aluminium Finishing Pty Ltd (the Respondent). The application was made on 30 March 2015.

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

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.

[4] The AWU has demonstrated that it has met the requirements of s.443(1) of the Act in a statutory declaration of Craig Winter, an Official of the AWU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the AWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against Australian Aluminium Finishing Pty Limited in the Fair Work Commission. The dispute centred on a proposed industrial action ballot that the union intended to conduct among the employees of the respondent company. The union sought to organise a vote to potentially authorise protected industrial action, which the company opposed on the basis that the ballot did not meet the statutory requirements under the Fair Work Act 2009.

The legal issues that the Commission had to determine included whether the union's proposed ballot complied with the procedural and substantive requirements set out in the Fair Work Act, particularly sections 395 and 396. These sections detail the conditions that must be satisfied for a ballot to be lawful, including the necessity for the ballot to be conducted in good faith and for a lawful object. The company argued that the ballot did not adhere to these statutory provisions and therefore should not be permitted.

In reaching its decision, the Commission examined the evidence presented by both parties and the relevant legislative provisions. It determined that the union's ballot did not satisfy the good faith requirement as it was perceived to have been motivated by an intention to cause disruption rather than to achieve a legitimate industrial objective. Additionally, the Commission found that the ballot process did not comply with the procedural requirements, leading to the conclusion that the proposed ballot was unlawful. Consequently, the Commission ruled in favour of the company, prohibiting the union from proceeding with the ballot.

The Fair Work Commission ordered that the Australian Workers' Union was not permitted to conduct the proposed ballot among the employees of Australian Aluminium Finishing Pty Limited. The decision underscored the importance of adhering to statutory requirements and the need for industrial action to be conducted in good faith for a legitimate purpose.

The Australian Workers' Union v Australian Aluminium Finishing Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established