Fair Work Act 2009

ss.423 424 425 - Application to suspend or terminate protected industrial action

Alcoa Portland Aluminium Pty Ltd Trading AS Portland Aluminium

Application to suspend or terminate protected industrial action.

• [1] On Wednesday, 10 September 2025, an application was filed by Alcoa Portland Aluminium Pty Ltd (Alcoa) seeking orders pursuant to ss.423, 424 and 425 of the Fair Work Act 2009 (the Act). The application concerns industrial action being engaged in by members of the Australian Workers' Union (AWU) at the Alcoa aluminium smelter in Portland, Victoria. Industrial action was notified on 3 September 2025 and commenced at 6:30PM on Saturday, 13 September 2025.

• [2] I listed the matter for urgent mention/ conference at 2PM on Thursday, 11 September 2025. The parties were unable to resolve the matter by conciliation, and the matter was listed for Hearing on Sunday, 14 September 2025.

• [3] On Friday, 12 September 2025, Alcoa filed:

• An Outline of Submissions;
• A Witness Statement of Tanya Michelle Simmonds, the Director of Finance for Alcoa and
• A Witness Statement of Narelle Casey Burns, the Technical, IT and ABS Manager for Alcoa.

• [4] On Saturday, 13 September 2025, the AWU filed:

• An Outline of Submissions;
• A Witness Statement of Carl Millard, AWU Union Organiser;
• A Witness Statement of Venessa Zwiers, AWU Senior Site Delegate and Alcoa Operator; and
• A Witness Statement of David Thomas, Alcoa Operator.

• [5] On Sunday, 14 September 2025, Alcoa filed an additional witness statement of Geordie Cook.

• [6] Because of the statutory time constraints and the urgency of the matter, I do not intend to repeat in great detail what is sufficiently reflected in the submissions of the parties with regard to the history and context of this matter but do provide the following as background.

• [7] Operators employed by Alcoa are covered by the Alcoa (Operators) Enterprise Agreement 2021 (2021 Agreement). The 2021 Agreement passed its nominal expiry date on 30 June 2025. The parties have been bargaining for a replacement agreement since April 2025 and have had 16 bargaining meetings to date.

• [8] On 1 July 2025, the AWU applied to the Fair Wok Commission for a protected action ballot order (B2025/1069). On 2 July 2025, the Fair Work Commission made a protected action ballot order (PR78819) (PABO).

• [9] The PABO specified that for the purposes of s.414(2) of the Act, the period of notice to be provided in relation to employee claim action was 5 working days and specified two 'safety undertakings', namely:

Employees will maintain minimum safety crews in accordance with clause 20.2 of the Alcoa (Operators) Enterprise Agreement 2021

Employees will make themselves available (as determined by the employer) to conduct the closure of the Smelter in an orderly manner over a seven - day period in accordance with clause 20.3 of the Alcoa (Operators) Enterprise Agreement 2021

• [10] On 25 July 2025, the AWU notified of protected industrial action in the form of four consecutive 12-hour stoppages commencing 5, 6 and 7 August 2025 and, later, on 30 July 2025, further advised of stoppages of six hours from 18 August 2025 until 22 August 2025.

• [11] On 1 August 2025, Alcoa filed an application with the Commission for an order for suspension of protected industrial action. This application was part-heard, and the parties were able to reach agreement to both withdraw the protected industrial action notices and the suspension application.

• [12] On 3 September 2025, the AWU notified of the intention to take the following protected industrial action:

• a 6-hour stoppage by continuous shift workers (Rodding and Ingot), followed by a 6-hour stoppage by continuous shift workers (Potrooms and Anode) on each night between Saturday, 13 September and Thursday, 18 September 2025, inclusive; and

• 2 full day stoppages by day shift workers on Tuesday, 16 September and Thursday, 18 September 2025.

• [13] Alcoa seeks an order to suspend industrial action pursuant to s.424 of the Act. In the alternative, it seeks orders pursuant to ss.423 or 425 of the Act.

• [14] Alcoa relies on s.424(1)(d) of the Act and submits that the Commission should make orders suspending all protected industrial action in connection with bargaining for the new agreement, for a period of three months. For completeness, the matters raised by s.424(1)(c) of the Act does not form part of the grounds for the application.

• [15] It has been said that orders such as those made pursuant to s.424 of the Act are only intended to be used in exceptional circumstances and where significant harm is caused by the action.[1] It is not, however, necessary to demonstrate exceptional circumstances exist as a criterion or test.[2] It is well acknowledged that unions have a right to engage in protected industrial action, in accordance with the Act, and usually the reason for the action is to cause a degree of inconvenience and expense to the employer as a "legitimate bargaining tool".[3]

• [16] Section 424 of the Act requires the Commission to determine two things:

(a) whether protected industrial action is being engaged in, or is threatened, impending or probable; and

• (b) whether it is satisfied that the industrial action has threatened, is threatening or would threaten to have the effects set out in ss.424(1)(c) or (d).[4]

• [17] To form the opinion required by s.424(1)(d), the Commission must have some basis upon which to be satisfied that significant damage is threatened.[5] An exercise of discretion is called for, involving a degree of subjectivity or value judgement.[6]

• [18] A Full Bench of this Commission recently said:[7]

The question of whether protected industrial action has threatened, is threatening or would threaten to cause significant damage to the Australian economy or an important part of it cannot be answered by simply producing an estimate of the likely economic impact of the industrial action as a monetary figure and asserting that figure is large. To assess the significance of damage threatened to be caused by industrial action, it is necessary to understand that the damage must be significant by reference to the Australian economy as a whole or an important part of it.

• [19] The protected industrial action the subject of the dispute here commenced on Saturday, 13 September 2025 and is proposed to continue until Monday, 22 September 2025. The expression 'is being engaged in', by its use of the present participle, connotes contemporaneity.[8] It is not contested, and I accept, that industrial action is being engaged in under s.424(1)(a).

• [20] I now turn to the consideration of whether the action that is being engaged in has, is, or would threaten to cause significant damage to the Australian economy or an important part of it.

• [21] Section 424 requires me to consider the threat of endangerment to the part of the economy in question, and it does not have to be established that the endangerment would, as a certainty, occur.[9] However, I must be satisfied that significant damage is threatened and that the consequences of this damage are 'above generalised predictions' [10] and that the threat of endangerment is probable, not just possible.[11] It is also necessary to consider whether the harm (loss) is of a contingent nature, and the extent to which it can be said it is certain.[12] As Guidice J observed: [13]

The industrial action must itself be giving ominous indication of being the direct or reasonably proximate cause of effects that are productive of, or are likely to be productive of, a relevant danger, peril or damage to welfare of the economy.

• [22] Alcoa submits that protected industrial action will result in pots being shut down. Depending on whether this happens, how it occurs and how many pots are involved, various consequences flow, which can at least be described as "possibilities". One such possibility is the loss of production (which will depend on the number of pots shut down). Another is the costs associated with shutting down and then re-starting pots, which Alcoa submits, and I accept, is substantial. The most serious possibility is that the smelter is closed.[14]

• [23] It is Ms Burns' evidence that the production process needs to continue on an ongoing basis, and that the stoppages of protected industrial action proposed disrupt this process. Further, she says that if the production process does not continue on an ongoing basis, this creates potential safety and environmental risks, as well as risks to the smelter's ongoing operations. Ms Burns says that if the level of liquid in a pot exceeds 350mm, it creates a risk that molten liquid may overflow.[15]

• [24] The parties made submissions on smelter processes, including pot levels, anode settings, and tapping, which was further elaborated upon at the Hearing. I do not consider it necessary to repeat in detail the processes involved in operating the pots.

• [25] In short, I summarise, the uncontested evidence as follows:

• Average pot liquid levels are currently at 320mm;
• Individual pot levels may be above or below 320mm;
• By next Saturday, 20 September, the average pot liquid level is expected to be 350mm;
• Pots need to be tapped once every 36 hours;
• Individual pot capacity, before overflow, is approximately 500mm;
• There are approximately 80-85 anode effects done across the day;
• It is possible to slow the pot liquid levels to some extent;
• A pot takes between 5-7 days to be rebuilt once it has been cut; and
• It takes 6-7 days to return a pot to optimum level.

• [26] The issue of the pot levels and the likelihood of overflow was contested and the evidence related mostly to what, if any, mitigation could be taken during this period to maintain pot levels.

• [27] The AWU submit that the protected industrial action only impacts 12 hours of each 36-hour period, which means that there is sufficient opportunity to tap the pots, as required - being once every 36 hours. It was Ms Burns' evidence that 'the pots need to be tapped every 36 hours (i.e. once every third 12-hour shift).'[16]At the Hearing, it was Ms Burns' evidence that she did not agree with the assertion that there was still a window of opportunity to tap the pots during the 36-hour period, despite the protected industrial action, although she did not provide any reasoning as to why.

• [28] The AWU say that Alcoa has 5 days' notice of its intention to take protected industrial action, which provides additional time to put in place mitigation strategies to maintain the pot levels. At the Hearing, Ms Burns agreed that it was possible to take some steps to slow pot levels to 'some extent'. Alcoa says that there is a threat that the mitigation strategies may not be enough, and that pots will need to be cut off, particularly if other issues occur in the ordinary course at the site, unrelated to the industrial action.

• [29] Alcoa submits that 'interim' safety undertakings provided by the AWU do not alleviate the risks associated with the protected industrial action because they have no status, and deal only with two scenarios, and then in which case, it would be too late to avoid a shutdown. However, I consider that Clause 20 of the expired Agreement, which is still in operation, and is referred to, in part, in the PABO under the heading as 'safety undertakings', to be an important and additional mitigant available to Alcoa to ensure the smelter remains operational.

• [30] Clause 20 of the 2021 Agreement provides as follows:

20.1 The parties recognise the importance of protecting the operational capability of the Portland Smelter and that statutory occupational health and safety and environmental obligations need to be met at all times.

20.2 This clause does not authorise unprotected industrial action. In the event of an industrial dispute effecting operations, the following will apply.

(i) Where the industrial action involves the withdrawal of labour for an extended period of time, safety crews will be made available as deemed necessary by the Company to maintain essential plant, equipment and operations so as to ensure that environmental, health and safety standards are not comprised and that the Site remains in an operational condition.

(ii) For this purpose, the minimum size of each Departmental safety crew will be:

20.3 Where the withdrawal of labour is of such a magnitude and duration as to require the closure of the Smelter, a sufficient number of employees will be made available (as determined by the Company) to conduct the closure in an orderly manner over a seven-day period.

• [31] This clause provides for Alcoa to determine, as it considers, that safety crews will be made available to ensure the plant remains operational. Clause 20.2(i) of the 2021 Agreement sets out the minimum safety crew numbers for each relevant area of operation but does not impose a barrier on Alcoa should it determine that it needs more crew to ensure that the plant remains operational. It appears that it is open to Alcoa to require that safety crews be available to ensure the plant remains operational. I consider this to be an additional mitigant Alcoa has available.

• [32] Overall, I cannot be satisfied on the evidence before me that the average pot liquid levels reaching 350mm would necessarily lead to a shut down in a section or in total (due to the evidence that the pots have extra capacity of approximately 150mm before overflowing). While I accept that if other factors in addition to the industrial action were to occur, then it may impact the closure of some potlines, there is no evidence before me of any such events. Presumably, if such circumstances were to arise, Alcoa is not prevented from making a further application.

• [33] On the evidence before me, I cannot be satisfied that the protected industrial action is threatening, or would threaten, the closure of one or both potlines, or the closure of the smelter entirely.

• [34] Alcoa submits that the operations of the smelter are an important part of the Australian economy. It also says that what might constitute an 'important part' of the Australian economy has been the subject of 'little structured consideration' and is a matter for the Commission's own judgement.[17] In its Outline of Submissions, Alcoa made the following assertions, which I consider to have been established by the uncontested evidence of Ms Simmonds. Alcoa says that Portland Aluminium:[18]

• Is one of four aluminium smelters in Australia;

• • That the smelter's production constitutes 100% of the aluminium produced in the State of Victoria, and approximately 20% of the aluminium produced in Australia each year when operating at maximum capacity;[19]

• That it has forecast revenue for the 2025 calendar year of $1.284 billion (AUD);
• That Alcoa is the largest employer in the Portland region, employing approximately 590 direct employees (including 382 Operators) at a total forecast cost for the 2025 calendar year of $100.7 million (AUD);
• That it engages a further 230 contractors and expends more than $205 million (AUD) in Victorian supply contracts per annum;
• That it generates $630 million (AUD) in export value annually for the State of Victoria; and

• • That there are currently 342 of a possible 408 pots, in operation,[20] which would indicate that the smelter is not presently operating at 100% capacity.

• [35] In describing what the 'important part' of the Australian economy is in this case, it is arguably the State of Victoria, or the economy of the Portland region, or the Australian aluminium industry. I acknowledge that for the community of Portland, its regional economy is very important to them. I accept too, that for those operating in the Australian aluminium industry, the economic performance of Alcoa Portland is important to them. However, the question to be determined is whether the Portland smelter is an important part of the Australian economy.

• [36] A regional economy may be capable of being considered an "important part" of the Australian economy. In Communications, Electrical, Electronic, Energy, Information, postal, Plumbing and Allied Services Union of Australia (CEPU) v Wilmar Sugar Pty Ltd, the Full Bench said that '[w]e would also not foreclose an argument being advanced that an industry might constitute an important part of the Australian economy because of its contribution to and significance for employment and economic activity of a particular region of Australia even though it represents a small part of the Australian economy as a whole.'[21]

• [37] An "industry", such as the aluminium industry, might also conceivably be an "important part" of the Australian economy: Sucrogen Australia Pty Ltd v Australian Workers' Union [2010] FWA 6192.

• [38] The economy of a State, such as the State of Victoria, undoubtedly constitutes an "important part" of the Australian economy.[22] If the production of aluminium at Portland Alcoa ceases, then on the evidence before me, the entire production of aluminium in Victoria ceases. While, presumably, this would have some effect on the Victorian economy, there is no evidence before me as to how significant this would be on Victorian economy as a whole.

• [39] Alcoa submits that the Commission can make a finding that the Portland smelter is an important part of the Australian economy because of public statements made to that effect by AWU organiser Mr Millard, and AWU National Secretary, Mr Farrow. These comments are that the smelter is 'one of the world's most significant aluminium operations', that the 'facility generates $560 million in export value annually for Victoria' and that 'Portland Aluminium is Victoria's only aluminium smelter.'[23] I do not find Alcoa's submission persuasive. I would well expect a union official to talk proudly of the importance of the work that their members do, but I can hardly consider such comments or statements to the media as being sufficient evidence of, or somehow determinative of, whether the smelter is an important part of the Australian economy.

• [40] Most of the evidence before me is about the possible economic effect of the protected industrial action on Alcoa. There is insufficient evidence before me to evaluate the relative importance of the Portland smelter: to the Australian economy, to the State of Victoria, to the aluminium industry, or to the economy of Portland.

• [41] I also note the Full Bench in Wilmar Sugar that said:[24]

Read in context, the reference to a part of the Australian economy in s 424(1)(d) is to be understood as referring to a discrete and identifiable collection of businesses, workers and consumers within the broader Australian economy. It does not, in our view, extend to the operations of a single employer, even if its operations are substantial.

• [42] On the evidence before me, I do not find that the Portland smelter is an important part of the Australian economy and that the protected industrial action would therefore threaten, is threatening or would threaten to cause significant damage to an important part of the Australian economy. As I am not satisfied that the application meets the requirements under s.424(1)(d), I have determined to dismiss the application made pursuant to s.424.

• [43] Section 423 of the Act provides as follows:

FWC may suspend or terminate protected industrial action - significant economic harm etc.

Suspension or termination of protected industrial action

(1) The FWC may make an order suspending or terminating protected industrial action for a proposed enterprise agreement that is being engaged in if the requirements set out in this section are met.

(2) If the protected industrial action is employee claim action, the FWC must be satisfied that the action is causing, or is threatening to cause, significant economic harm to:

(a) the employer, or any of the employers, that will be covered by the agreement; and

(b) any of the employees who will be covered by the agreement.

the FWC must be satisfied that the action is causing, or is threatening to cause, significant economic harm to any of the employees who will be covered by the agreement.

(4) For the purposes of subsections (2) and (3), the factors relevant to working out whether protected industrial action is causing, or is threatening to cause, significant economic harm to a person referred to in those subsections, include the following:

(a) the source, nature and degree of harm suffered or likely to be suffered;

(b) the likelihood that the harm will continue to be caused or will be caused;

(d) the views of the person and the bargaining representatives for the agreement;

(e) whether the bargaining representatives for the agreement have met the good faith bargaining requirements and have not contravened any bargaining orders in relation to the agreement;

(f) if the FWC is considering terminating the protected industrial action:

(i) whether the bargaining representatives for the agreement are genuinely unable to reach agreement on the terms that should be included in the agreement; and

(ii) whether there is no reasonable prospect of agreement being reached;

(g) the objective of promoting and facilitating bargaining for the agreement.

(5) If the protected industrial action is threatening to cause significant economic harm as referred to in subsection (2) or (3), the FWC must be satisfied that the harm is imminent.

(a) the protected industrial action has been engaged in for a protracted period of time; and

(b) the dispute will not be resolved in the reasonably foreseeable future.

• [44] I have considered all the matters in s.423. For the Commission to be empowered to make orders pursuant to s.423 of the Act, pursuant to s.423(6), it must be satisfied that the protected industrial action has been engaged in for a protracted period of time.

• [45] In this case, the action commenced on Saturday, 13 September 2025. The question as to whether industrial action is "protracted" is one in relation to which reasonable minds may well differ.[25] The word "protracted" is to be given its plain meaning.[26]

• [46] It is acknowledged by Alcoa that 'the protected industrial action has not been occurring for a significant period of time'.[27] While I accept that the term 'significant' here does not necessarily mean the same as 'protracted', I can in the circumstances reasonably infer this to be a reference to the passage of time. In my view, having engaged in protected industrial action for approximately 2 days, it cannot be said that the industrial action has been engaged in for a protracted period of time. The action is therefore not "protracted" within the meaning of s.423(6) of the Act and the Commission has no power to make the orders Alcoa seeks pursuant to s.423 of the Act. I therefore dismiss the application made pursuant to s.423 of the Act.

[47] The Full Bench in Application by Sydney Trains and NSW Trains,[28] considered the Commission's task in determining s.425 applications and said that '[t]he criterion of appropriateness requires the making of an evaluative judgement which may be characterised as discretionary in nature. The Commission's consideration of appropriateness must take into account the matters specified in paragraphs (a)-(d) and, to this extent, the section guides the formation of the Commission's evaluative judgment. The matters must therefore be given weight and treated as fundamental elements in the Commission's consideration, but no individual matter is necessarily determinative'.[29]

• [48] It is not contested that s.425(1) is enlivened, and that an application has been made in accordance with s.425(2).

• [49] I will now turn to whether a suspension would be beneficial to the bargaining representatives.[30] While it was the submission of both parties that bargaining is at an impasse, I do not consider that the suspension would assist the parties to resolve the outstanding bargaining matters. This is because there are only a small number of bargaining matters outstanding, and revised offers have been made as recently as last week. I also consider the history of bargaining for the new Agreement to be relevant.[31] Alcoa opposed the PABO application, made an application under s.240 of the Act, and made a previous application to suspend protected industrial action at the smelter. In light of this, I consider that to suspend the capacity of employees to take protected industrial action for a period of three months when Alcoa has taken robust steps in response to the industrial actions of its employee would hinder, rather than assist, the parties in resolving the matters at issue.

• [50] I have already considered the time period of protected industrial action in some detail above and have taken this into account.

• [51] I have considered whether the suspension would be contrary to the public interest or inconsistent with the objects of the Act. Alcoa submits that the suspension would not be contrary to the public interest but would rather be in the public interest, as it could help to avoid the potential closure of the smelter along with the other consequences they have identified.[32] As I have made a finding above that the protected industrial action is unlikely to result in the closure of the smelter, I do not consider Alcoa's submissions to be persuasive in this regard.

• [52] I do not consider there to be any other matters relevant to the consideration.[33]

• [53] Having engaged in protected industrial action for a period of two-days, I am not of the view that a 'cooling off' period is appropriate. Whilst the parties have both expressed the view that they are at an impasse in bargaining, it is notable that there are only a few matters left outstanding. As such, taking into account the matters in s.425, I am not satisfied that suspension is appropriate, and decline to make an order pursuant to s.425 of the Act. I therefore dismiss the application made under s.425.

[1] National Tertiary Education Industry Union v University of South Australia [2010] FWAFB 1014; (2010) 194 IR 30 [8].

[2] National Tertiary Education Industry Union v Monash University [2013] FWCFB 5982 [20]-[21].

[3] See, e.g., Alcoa of Australia Ltd v Australian Workers' Union [2010] FCA 278 [35].

[4] Commonwealth of Australia represented by the Department of Home Affairs Trading AS Department of Home Affairs [2025] FWC 603 [58].

[5] C_oal & Allied Operations Pty Ltd v Australian Industrial Relations Commission_ (2000) 203 CLR 194 [28] (Gleeson CJ, Gaudron and Hayne JJ).

[6] CEPU v Transgrid [2024] FWCFB 333 [20].

[7] Communications, Electrical, Electronic, Energy, Information, postal, Plumbing and Allied Services Union of Australia (CEPU) v Wilmar Sugar Pty Ltd [2024] FWCFB 319 [72].

[8] Re Dingjan; Ex parte Wagner [1995] HCA 16; 183 CLR 323, 362 (Gaudron J, Mason CJ and Deane J agreeing).

[9] Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union [2009] FWC 44 [29]; Serco Australia Pty Limited T/A Serco v United Workers' Union [2024] FWC 1275 [18].

[10] C_oal & Allied Operations Pty Ltd v Australian Industrial Relations Commission_ [2000] HCA 47; 203 CLR 194 [28] (Gleeson CJ, Gaudron and Hayne JJ).

[13] Coal & Allied v CFMEU (1998) 80 IR 14 [32].

[14] Witness Statement of Tanya Simmonds [26].

[15] Witness Statement of Narelle Casey Burns [45], [58].

[16] Witness Statement of Narelle Casey Burns [59].

[17] Outline of Submissions of the Applicant [41].

[19] Ms Burns conceded in her evidence that the smelter is not currently running at maximum capacity and so its current contribution to the overall production of aluminium in Australia is presently somewhere less than 20%.

[20] Witness Statement of Narelle Casey Burns [19].

[21] Communications, Electrical, Electronic, Energy, Information, postal, Plumbing and Allied Services Union of Australia (CEPU) v Wilmar Sugar Pty Ltd [2024] FWCFB 319 [105].

[22] Minister for Industrial Relations for the State of Victoria v AGL Loy Yang Pty Ltd [2017] FWC 2533 [42_]; BP Refinery (Kwinana) Pty Ltd v Australian Workers' Union_ [2019] FWC 68 [58].

[23] Witness Statement of Tanya Simmonds TMS-1.

[24] Communications, Electrical, Electronic, Energy, Information, postal, Plumbing and Allied Services Union of Australia (CEPU) v Wilmar Sugar Pty Ltd [2024] FWCFB 319 [94].

[25] Prysmian Power Cables and Systems Australia Pty Ltd v NUW, CEPU and AMWU [2010] FWC 9402 [99].

[26] United Voice v MSS Security Pty Ltd [2013] FWC 4557 [105].

[27] Outline of Submissions of the Applicant [73(b)].

[28] [2025] FWCFB 46 (Sydney Trains).

[31] Mammoet Australia Pty Ltd v Construction, Forestry, Mining and Energy Union [2010] FWA 4389.

[32] Outline of Submissions of the Applicant [73(c)].

Printed by authority of the Commonwealth Government Printer