Fair Work Act 2009

s.437 - Application for a protected action ballot order

Alcoa Portland Aluminium Pty Ltd Trading AS Alcoa Portland

Proposed protected action ballot of employees of Portland Aluminum (Operators) Enterprise Agreement 2021

• [1] This is an application by the Australian Workers' Union (AWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Alcoa Portland Aluminium Pty Ltd (Alcoa).
• [2] On 1 July 2025, the Commission was advised that pursuant 443(5) of the Act, Alcoa seeks an extended notice period for protected industrial action be specified to which AWU does not agree. Alcoa seeks the period be extended to 5 working days, in respect to all of the questions specified in the Application.
• [3] In those circumstances, I listed the Application for a hearing which occurred on 2 July 2025.
• [4] Mr Malbasa appeared at the hearing for the AWU and I granted permission to Alcoa to be represented by a lawyer, pursuant to s 596 of the Act. Mr Lovell appeared at the hearing for Alcoa.

• [5] In addition to its Form F34 Application and accompanying draft order, the AWU relied on an Outline of Submissions filed shortly before the hearing, and a Witness Statement filed by Mr Carl Millard. Mr Millard gave evidence at the hearing which was not contested, nor was he subjected to cross examination. Mr Malbasa made oral submissions for the AWU at the hearing.
• [6] Alcoa relied on an Outline of Submissions filed shortly before the hearing, and a Witness Statement filed by Ms Narelle Burns. Ms Burns gave evidence at the hearing and was subjected to cross examination. Ms Burns made oral submissions for Alcoa at the hearing.

• [7] Ms Burns gave evidence about the Alcoa aluminium smelter located at Portland in Victoria, which is the subject of this Application. She described it as a large smelter where a 24 / 7 process is operated on site to produce aluminium.
• [8] Based on Ms Burns' explanation, it is evident that a process occurs at the smelter involving a constant flow of raw materials being heated to very high temperatures by way of the application of an electrical current. It is described as a complex process. About 590 employees work at the Smelter and 230 contractors people work at the smelter. Operational employees work across various shifts on a 24 / 7 basis.

• [9] The proposed protected action ballot would ask employees to authorise protected industrial action in the form of stoppages of work of an unlimited duration of various lengths of time of up to 24 hours, which may be taken separately, concurrently and / or consecutively. As a consequence, if authorised, the protected industrial action which might be taken could involve a stoppage of work of up to seven days in duration, depending on which action is authorised and how it is combined. The ballot would also pose questions on bans relating to employees responding or complying with employer requests about whether they intend to take protected industrial action or whether they are Union members.
• [10] As a result of discussions between the parties:
  1. Any order made by the Commission is to include, by consent, an undertaking made by AWU that employees will maintain minimum safety crews in accordance with clause 20.2 of the Portland Aluminum (Operators) Enterprise Agreement 2021 (the Agreement) and that 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 Agreement.
  2. A question which would have authorised an unlimited number of stoppages of the performance of all work for an unspecified period was removed, by consent.

• [11] The AWU opposes the extension of the notice period on the following grounds:
  1. That its concessions and accommodations, including to provide a safety undertaking and remove a question, weigh in against the extension of the notice period.
• b. That the approach taken by Colman DP in AWU v Kempe Services Pty Ltd[1], where the extension of the notice period was refused, should be adopted in this matter.

1. That, in so far as the Respondent submits significant economic consequences or broader economic consequences for Southwest Victoria weigh in favour of extending the notice period, those submissions are speculative.

1. That the Respondent has other mechanisms it can use to deal with its concerns, such as the compulsory conference process that will occur pursuant to s 448A of the Act, or through an application it is entitled to make pursuant to ss 240 or 424 of the Act.
2. That it appears additional notice is sought by the Respondent for reasons that are nefarious and fanciful and not genuinely held, and that its reasons have nothing to do with safety or economic concerns but because it intends to plan to do accelerated setting and move planned shits (maintenance).
3. That while a notice period of 5 working days was ordered in protected ballot orders made in respect of these parties in 2018 and 2021, different circumstances applied in relation to those orders than those now before the Commission.
4. That, taking into account that the Commission must be satisfied that exceptional circumstances exist, and that those circumstances justify the extension of the period, that the sound basis for any such state of satisfaction does not exist.

• [12] The Respondent seeks that the notice period should be extended to a period of five working days on the following basis:
  1. That the stoppages contemplated by the Application could result in protected industrial action which, if authorised and taken, might mean that, unless it is provided with more than three working days to take particular steps, Alcoa could not ensure the safe operation of the smelter without taking "pots" out of service and shutting down other plant and equipment. The time it would take to implement these particular steps is five working days. The consequences of taking pots out of service and the consequential need to re-start those pots is of such significance as to constitute an "exceptional circumstance" justifying the extension of the notice period within the meaning of the Act.
  2. That, taking into account observations made by the Commission in some of the authorities about the effectiveness of protected industrial action balanced against the employer's ability to take appropriate defensive action, the proposed extension to the notice period "strikes a balance between the risk of harm and the effectiveness of the industrial action in supporting the employee's claims".
  3. That the fact previous Orders made by the Commission in 2021 and 2018 concerning these parties in specified a notice period of five working days should weigh in favour of the exercise of discretion in respect to extending the notice period in this case.
• [13] In oral submissions, Alcoa also took me to an even earlier decision of Commissioner Lewin involving these parties and an application for a protected action ballot order which included a dispute about whether an extended notice period should be provided[2]. The decision concerned, among other things, a question seeking authorisation for an "indefinite stoppage of work" - something I note is not sought by this Application. In his decision, the Commissioner also observed that:

"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 those circumstances is within the mutual comprehension of the AWU and Alcoa Portland."[3]

• [14] I understood Alcoa to be asking me to reach a similar conclusion in respect to the apparent agreement reached by Alcoa and AWU in 2021 and 2018 as that drawn by Commissioner Lewin in respect to an order made in 2011.
• [15] Alcoa further submitted that the smelter is a workplace of the kind that the Commission has in previous circumstances considered to be one in which it might be said exceptional circumstances may exist. It referred to, in particular the decision of Lawler VP in CEPU v Australia Postal Corporation[4] where his honour said:

"[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees' bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.

[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose."

• [16] The evidence given by AWU and Alcoa was not hotly contested or, in the case of the AWU's evidence, contested at all.
• [17] Mr Millard said, relevantly, that he considers the extension to the notice period sought to be unreasonable, on the basis that in his extensive experience on site, there have been a number of process issues at times where work stops but the plan remains running until work can start again.
• [18] Ms Burns said where Alcoa receives notice of industrial action in the form of stoppages, Alcoa will take several steps to ensure the stability of the production process and to eliminate or minimise the risks to health and safety to the extent reasonably practicable. There was no challenge made to Ms Burns that these steps were those that Alcoa would take in this circumstances nor was there any evidence to the contrary.
• [19] Ms Burns said that to take these steps, Alcoa would require at least five working days. She did not resile from this evidence when challenged under cross examination.
• [20] Ms Burns said that if the steps she identified could not be taken, Alcoa would very likely need to shut down "pots". Pots are an large electrolytic cell which contains the molten aluminium smelting process.
• [21] Ms Burns said that the consequences for Alcoa if it were required to shut down pots are significant. To re-start the pot, Alcoa will incur some $330,000 per pot and require five to seven days of work and process. Presumably, this would also affect production itself, and have resultant supply and economic consequences.
• [22] Ms Burns said that alternative labour such as labour hire was not a mitigation strategy able to be used in these circumstances, because training on the equipment used can take up to six months.

• [23] The principles associated with the exercise of the discretion in subsection 443(5) to specify an extension of the written notice period are well settled.
• [24] The subsection provides:

443 When the FWC must make a protected action ballot order . . . (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.

• [25] In NTEIU v Charles Darwin University [2018] FWCFB 4011, the Full Bench of the Commission said:

"[20] The exercise of a discretion under s.443(5) results in an interference with the right of a bargaining representative to otherwise give three working days' written notice of industrial action that is to be organised and engaged in by employees in support of a proposed agreement. That this right should not lightly be curtailed by the imposition of a longer period of notice is evident in the grant of power itself. There must be "exceptional circumstances" in relation to the proposed industrial action the subject of the order justifying a longer period."

[21] The meaning of "exceptional circumstances" in the context of s.463(5) of the Workplace Relations Act 1996 (WR Act) was discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation. In the case, Lawler VP said:

'[10] ... In summary, the expression "exceptional circumstances" requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances "justifying" the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.'

[22] Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the Act. We consider the discussion extracted above is apposite to the phrase "exceptional circumstances justifying" in s.443(5).

[23] The determination of whether the circumstances in a particular case are 'exceptional' involves an evaluative judgement. A proper approach to the exercise of the Commission's discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase "exceptional circumstances" carries its ordinary meaning.

[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances "justifying" a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb "justifying" in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.

[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period)."

• [26] In CFMMEU v DP World Sydney Ltd[5] the Full Court of the Federal Court held (at [16]):

"The Full Bench in National Tertiary Education Industry Union v Charles Darwin University was not suggesting that in order to properly discharge the statutory function the reasons for a decision had to be structured into three separate and distinct parts. The Full Bench was providing guidance on the statutory provision which provides that if the FWC is satisfied 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."

• [27] Having regard to these principles, I consider relation to this Application there are exceptional circumstances that justify an extension of the ordinary written notice period in respect to protected industrial action to 5 working days. I reaching this conclusion I have taken into account the submissions of the parties. In this regard:
  1. The evidence of Ms Burns - that the stoppages contemplated by the Application could result in protected industrial action which, if authorised and taken, might mean that, unless it is provided with more than three working days to take particular steps, Alcoa could not ensure the safe operation of the smelter without taking "pots" out of service - is essentially unchallenged. I accept her evidence that the time it will take to implement these steps is five days. The consequences if this is not done - to take pots out of service and then have to re-start them - are exceptional circumstances. They are also of a significance that justify additional notice being required to be provided such that the situation might be avoided.
  2. I am fortified in this view by the comment made by Lawler VP in CEPU v Australia Postal Corporation, referencing a sophisticated piece of machinery such as a smelter being a circumstance that may well qualify as exceptional.
  3. The concessions made by the AWU in respect to this Applicant are sensible, but they do not sufficiently mitigate against the potential consequences of the possible action, as described by Ms Burns, such that the circumstances become unexceptional.
• d. The decision of Colman DP[6] does not assist the AWU as it plainly involved a different circumstance where the employer in question had not led evidence, as Alcoa did, as to the extent of the impact of the potential stoppages on its operation, and in that case the Union did lead evidence, which appears to have been accepted , that alternative labour may have been used to mitigate the proposed action's effect.

1. I did not understand Alcoa to place any great weight on the significance of economic consequences or broader economic consequences for Southwest Victoria, as alluded to in the AWU's submissions.
2. Other mechanisms Alcoa may take in relation to its concerns may not afford it with the time it needs to take the steps Ms Burns identified (if, for example, agreement cannot be reached through those process as to further concessions by the AWU).
3. There was no evidence before me that the reasons Alcoa seeks the extension of the notice period are nefarious and fanciful and not genuinely held, or that its reasons have nothing to do with safety or economic concerns but because it intends to plan to do accelerated setting and move planned shits (maintenance).

• [28] For completeness, I did not consider that the fact agreement may have been reached in relation to an extended ballot period in 2021 and 2018 weighed in Alcoa's favour, nor that an Order was made to this effect in 2014. The circumstances that existed at those times may well have been different than those before me (and the AWU submitted that was so).
• [29] I determine the minimum notice period for the protected industrial action identified in questions 1 to 9 of the ballot I will order occur in this matter will be five working days.

• [30] I observe that the Parties agreed for the AWU to provide the following undertakings, which have also been added to the Order:
  1. Employees will maintain minimum safety crews in accordance with clause 20.2 of the Portland Aluminum (Operators) Enterprise Agreement 2021.
  2. 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 Portland Aluminum (Operators) Enterprise Agreement 2021.
• [31] I further observe that before me the Partis agreed that despite what was sought in the Application, the date by which voting is to close will be 15 days from the making of the Order.
• [32] On the basis of the material before me, including the declaration of Ross Kenna, Lead Organiser of the AWU's Country Team, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Alcoa, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.
• [33] The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.
• [34] For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 17 July 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.
• [35] An Order has been separately issued in PR788819.
• [36] This matter will be assigned to a Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

[1] [2025] FWC 541

[2] [2014] FWC 2289

[4] [2007] AIRC 848; (2007) 167 IR 4

[5] [2019] FCAFC 99

[6] [2025] FWC 541

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