Fair Work Act 2009_

s.437 - Protected action

Proposed protected action ballot by employees of Alcoa Portland Aluminium Pty Limited - notice of protected industrial action required - method of voting - directions to the Australian Electoral Commission.

[1] On 31 March 2014 the Australian Workers' Union (the AWU) made an application to the Fair Work Commission (the Commission) under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order of "AWU members who are employed by [Alcoa Portland Aluminium Pty Ltd (Alcoa)] and who are currently covered by the Portland Aluminium (Operators) Agreement 2011 (the 2011 Agreement) and who have not appointed someone other than the AWU to be their bargaining representative" in relation to a proposed enterprise agreement, to succeed the 2011 Agreement.

[2] Alcoa operates a large aluminium smelter at Portland in Victoria. Aluminium smelting is a unique industrial process of a continuous nature which cannot be readily stopped and started. The Commission is familiar with the industry and the technology involved.

[3] The relevant statutory provisions in relation to the application are set out as follows:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[4] Section 443(1) of the Act outlines when the Commission must make a protected action ballot order:

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.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] Alcoa opposed the order sought by the AWU on various grounds as follows:

a) the AWU was not, at the time the application was lodged or when the application was first heard, genuinely trying to reach an enterprise agreement with Alcoa, the employer of the employees who are to be balloted;

b) the questions to be put to the employees eligible to vote in the ballot were inappropriate and different questions should be posed having regard to the nature of the employer's business undertaking;

c) the application did not provide for appropriate notice of proposed protected industrial action in the event it was approved and authorised in accordance with the Act; and,

d) the appropriate method for voting was by postal vote rather than an attendance ballot.

[6] A hearing of the application was conducted on 4 April 2014. Evidence was given by:

● Mr Nick Bacon, the Human Resources Business Partner at Alcoa Portland;

● Mr Mark Crespan; a Technical Manager at Alcoa Portland; and,

● Mr Dan May, the Health Safety and Plant Protection Manager at Alcoa Portland.

[7] The application included a listing of meetings and conferences between the AWU and Alcoa for the purpose of bargaining for the proposed enterprise agreement to succeed the 2011 Agreement.

[8] During the course of the hearing of the application, Alcoa resiled from the submission that the AWU was not genuinely trying to reach agreement on terms for the proposed enterprise agreement, following an undertaking by the AWU clarifying its intention to meet with appointed representatives of Alcoa at any reasonable time. Alcoa had apprehended the AWU was refusing to meet with its appointed representatives, other than persons specified by the AWU. Consequently, I was satisfied that the AWU has been and was at the time of the hearing genuinely trying to reach an agreement with Alcoa as required by the relevant statutory provisions.

[9] Moreover, it was conceded by Alcoa that, except to ensure that employees are reasonably able to understand a question in relation to a kind or form of industrial action, the Commission lacked jurisdiction and power to formulate the content of a question to be put to employees in a protected industrial action ballot. Should I have been required to decide this issue I would have done so commensurate with the concession. In my view, the questions in the draft ballot order accompanying the application were unambiguous and could be readily understood by the employees eligible to vote in the ballot.

[10] Consequently, the issues to be determined by the Commission in relation to the application were reduced to:

a) the period of notice to be given to Alcoa of forms of industrial action which may be taken consequent upon the approval of protected industrial action in accordance with the relevant statutory provisions; and,

b) the method of voting for the conduct of the ballot.

[11] At the conclusion of the hearing on 4 April 2014, I decided, ex tempore, to make an order for the conduct of a protected action ballot. I determined that all of the conditions precedent to the jurisdiction and power to make such an order prescribed by the Act had been met and therefore an order must be made. I determined different periods of notice to be given to Alcoa of various forms of protected industrial action which may be approved by the outcome of the ballot. I issued directions to the Australian Electoral Commission in relation to the method of voting for the conduct of the ballot. I stated that I would publish my reasons for that decision and directions. These are those reasons.

[12] As previously stated, s.443(5) of the Act provides:

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[13] A question to be put to employees is whether or not to approve of an "unlimited number of stoppages of the performance of all work for an indefinite period?".

[14] It was established in the evidence of Mr Crespan that in the event of an indefinite stoppage of work by the relevant employees Alcoa would need to shut down the smelter's "pot lines" for safety reasons. Moreover, the consequences would be an extended total shut down of the smelter for weeks or possibly months. Such a shut down would necessitate considerable remedial action to enable a restart of the smelting process. In my view, the gravity of the consequences for the relevant employees and Alcoa is self-evident.

[15] Alcoa submitted, as part of the material in the matter, a copy of a protected industrial action ballot order made in 2011, the terms of which included different periods of notice for various kinds of protected industrial action. The periods of notice were the subject of negotiation and agreement between the AWU and Alcoa when the application for the 2011 protected industrial action order was made.

[16] The appropriateness of the extended notice provisions agreed to by the parties in 2011 was supported by the evidence before me, with the exception of the appropriate notice to be given for an indefinite stoppage of work, if approved by the ballot ordered and authorised in accordance with the Act.

[17] I am satisfied that there are exceptional circumstances which justify a period of greater than three days notice in relation to various forms of industrial action which are the subject of the ballot sought by the order.

[18] The evidence identifies important occupational health and safety issues and the possibilities of an extended total shut down of the smelter operations with lengthy delays to a restart of the operations. Moreover, in my view, the agreement between the AWU and Alcoa on the extended notice periods of protected industrial action of similar kinds in 2011 leads to the conclusion that the exceptional nature of these circumstances is within the mutual comprehension of the AWU and Alcoa Portland.

[19] I consider the only variation to the various amounts of notice provided for by the 2011 order which is supported by the evidence concerns an indefinite stoppage of work.

[20] Accordingly, I have adopted the notice periods provided for in the 2011 Order with one variation, which is to increase the notice period of an indefinite stoppage from 5 to 7 days. In my view, given the unique continuous nature of the aluminium smelting process, the consequences of a total shut down and an inevitable long recovery period for the relevant employees and Alcoa, it is desirable to provide greater scope for an agreement to be reached between notification of an indefinite stoppage and commencement of the stoppage on terms which may prevent it occurring.

[21] There was contention between the parties concerning the most appropriate method of voting.

[22] The AWU submitted that an attendance ballot would offer the best opportunity for efficient conduct of the ballot due to the rural and regional nature of the location of the addresses of the employees eligible to vote. The AWU submitted that voting on site at the end of each shift would be the most effective method of voting.

[23] Alcoa submitted that if attendance voting was the method of the ballot of employees they could feel intimidated. Alcoa conceded that there was no evidence either contemporaneous or historical to support such a submission nor any authority or decided cases which could be relied upon for this submission. The AWU took deep offence at this submission. In my view, the submission was reckless and unfounded and I reject it accordingly.

[24] Alcoa submitted that due to a proportion of the workforce not being in attendance at any one time, due to various forms of leave and for other reasons, a postal vote would be preferable and would maximise participation in the ballot.

[25] Section 451(2) of the Act provides as follows in relation to a protected action ballot:

(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must, in consultation with each applicant for the order and the employer of the employees who are to be balloted:

(a) develop a timetable for the conduct of the protected action ballot; and

(b) determine the voting method, or methods, to be used for the ballot (which cannot be a method involving a show of hands).

Note: For the purposes of paragraph (2)(b), examples of voting methods are attendance voting, electronic voting and postal voting.

[1] The Australian Electoral Commission is hereby directed to conduct the ballot in this matter in a manner which takes into account the following:

a) maximum participation by eligible voters in the time allowed for the conduct of the ballot; and,

b) any limitation or constraint upon participation in the ballot likely to arise from the addresses of eligible voters or any likely impediment to receipt and return of completed ballot papers within the time allowed for the conduct of the ballot by eligible voters.

[27] The issues put to me in relation to the method of voting can be determined by the Australian Electoral Commission (the AEC) after the consultation required. During that consultation, the AEC will undoubtedly take into account what will be put by the AWU and Alcoa, which I anticipate will be more detailed and informed than the information before me and have regard to its own process for the conduct of the ballot in accordance with the directions and the time allotted.

[28] In my view, having the responsibility for the logistical issues involved in the conduct of the ballot, in accordance with the terms of the order, will enable the AEC to make a more finely tuned judgement of the most appropriate method of voting in all the circumstances than the Commission.

[29] On what is before me, the merits of either method of voting weigh neutral in the relevant circumstances.

[30] For these reasons, and those stated in my ex tempore decision of 4 April 2014, a protected action ballot order has issued.

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