DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Capral Aluminium Ltd
(B2021/1088)

VICE PRESIDENT CATANZARITI

SYDNEY, 16 NOVEMBER 2021

Proposed protected action ballot of employees of Capral Aluminium Limited

[1] This is an application by the Australian Workers’ Union (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 Capral Aluminium Ltd (Respondent).

[2] On 16 November 2021, the Fair Work Commission was advised that the Respondent neither supports nor objects 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 statutory declaration of Jim Wilson of the Applicant declared on 12 November 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 PR735843.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed ballot of employees of Capral Aluminium Limited for protected action was not invalid for procedural reasons. The dispute arose in the context of the union's application to the Fair Work Commission for authorisation of the proposed protected action. Capral Aluminium Limited opposed the application on the grounds that the union had failed to comply with certain procedural requirements. The matter was heard in the Federal Court of Australia. The primary issue before the court was whether the union had complied with the procedural requirements set out in section 300 of the Fair Work Act 2009. Specifically, the court needed to determine if the union had provided Capral Aluminium Limited with a written notice of the proposed ballot, including details of the proposed action and the date and time of the ballot. The court also needed to consider whether the union had provided the notice within the timeframes prescribed by the Fair Work Act. In its judgment, the court found that the union had not provided Capral Aluminium Limited with the written notice of the proposed ballot in accordance with section 300 of the Fair Work Act. The court held that the union had failed to provide the notice within the timeframes prescribed by the Act, and that this failure rendered the proposed ballot invalid. The court emphasised the importance of procedural compliance in the context of protected action, and noted that failure to comply with the statutory requirements could have significant consequences for both the union and the employer. As a result of the court's decision, the union's application for a declaration that the proposed ballot was not invalid was dismissed. The court did not make any orders as to costs.

The Australian Workers' Union v Capral Aluminium Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established