United Workers' Union v Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove Summary

[2022] FWC 2989

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459—Protected action

United Workers’ Union
v

Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove

(B2022/1693)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 NOVEMBER 2022

Application to extend the 30 day period in relation to B2022/1447

On 9 November 2022, the United Workers’ Union (Applicant) made an application to the Fair Work Commission (the Commission) pursuant to s. 459(3) of the Fair Work Act 2009 (Cth) (the Act) to extend the 30 day period for protected action authorised by a protected action ballot order, PR746266 made on 28 September 2022. The Order applies to certain employees of Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove (the Respondent).

The ballot result, by which a majority of the relevant employees endorsed the proposed forms of protected industrial action, was declared on 14 October 2022. Pursuant to s.459(1)(d)(i) of the Act, the 30 day period for protected action commenced on the date of the declaration of the results of the ballot and therefore expires at midnight on 12 November 2022.

On 10 November 2022, the Respondent advised the Commission via email that it does not oppose the United Workers’ Union’s application to extend the 30 day period for protected industrial action. Accordingly, I have determined the matter on the basis of the documentation filed.

In addressing s.459(3) of the Act, this application is made by the United Workers’ Union who is the Applicant for which the protected action ballot order was issued. Furthermore, the period specified in s.459(1)(d)(i) has not been previously extended.

On that basis and on the material before me, I am satisfied that each of the relevant requirements of s.459 of the Act have been met and that a 30 day extension is appropriate. As the 30 day period expires at midnight on 12 November 2022, the extension period will operate from 12 November 2022.

An order has been separately issued in PR747821.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the United Workers' Union (UWU) to extend the 30-day period for protected action authorised by a ballot order made on 28 September 2022. The protected action ballot order applied to certain employees of Rio Tinto Aluminium Limited, trading as Rio Tinto Alcan Gove. The UWU sought an extension of the 30-day period for protected action, as authorised by section 459(3) of the Fair Work Act 2009 (Cth). The ballot results, which endorsed the proposed forms of protected industrial action, were declared on 14 October 2022, and the 30-day period for protected action began on that date, expiring on 12 November 2022. Rio Tinto Aluminium Limited did not oppose the application, and the Commission determined the matter based on the documentation filed.

The legal issues in this case centred on whether the UWU's application for an extension of the 30-day period for protected action complied with the requirements of section 459 of the Fair Work Act. Specifically, the Commission had to consider whether the UWU met the statutory requirements for extending the period, including the fact that the 30-day period had not been previously extended. The UWU needed to demonstrate that the extension was necessary and appropriate, considering the circumstances of the case and the provisions of the Act.

The Fair Work Commission, represented by Vice President Catanzariti, found that the UWU's application satisfied the requirements of section 459 of the Fair Work Act. The Commission was satisfied that the relevant requirements of the Act had been met, and that a 30-day extension was appropriate. Given that the original 30-day period was set to expire at midnight on 12 November 2022, the extension period would commence from that date. Consequently, the application for an extension was granted, and an order was issued separately in PR747821.

The final orders of the Fair Work Commission granted the UWU's application for an extension of the 30-day period for protected action. The extension period would operate from 12 November 2022, allowing the UWU to continue the authorised protected action within the extended timeframe. This decision ensures that the UWU can pursue its industrial action objectives as authorised by the original ballot order, while also considering the need for an extension in the specific circumstances of the case.

United Workers' Union v Rio Tinto Aluminium Limited T/A Rio Tinto Alcan Gove

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established