Association of Professional Engineers, Scientists and Managers, Australia, The, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd T/A BHP Mitsubishi Alliance (BMA) Summary

[2023] FWC 3269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Association of Professional Engineers, Scientists and Managers, Australia, The, Mining and Energy Union

BM Alliance Coal Operations Pty Ltd T/A BHP Mitsubishi Alliance (BMA)

(B2023/1330)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 6 DECEMBER 2023

Proposed protected action ballot of employees of BM Alliance Coal Operations Pty Ltd Trading As BHP Mitsubishi Alliance (BMA).

This is an application by the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) and the Mining and Energy Union (MEU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of BM Alliance Coal Operations Pty Limited T/A BHP Mitsubishi Alliance (BMA or Employer).

The matter was listed or hearing on 6 December 2023. At the hearing, the parties advised the Commission that they had reached agreement in relation to the terms of a draft protected action ballot order.

On the basis of the material before me, including the declarations of Zac Gallagher, Senior Organiser, APESMA, and Jeffrey Scales, District Vice President, MEU, setting out the steps taken by APESMA and the MEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with BMA, 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.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd T/A Vero Voting. Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and is authorised to conduct the ballot.[1]

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 20 December 2023. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR769091.

This matter will soon be listed for the s.448A compulsory conciliation conference. An Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference will be issued together with Directions that ensure the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Vero Engagement & Voting Solutions Pty Ltd[2023] FWC 1531.

Printed by authority of the Commonwealth Government Printer

< PR769098>

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the Association of Professional Engineers, Scientists and Managers, Australia and the Mining and Energy Union for a protected action ballot order concerning certain employees of BM Alliance Coal Operations Pty Ltd, trading as BHP Mitsubishi Alliance. The unions sought to conduct the ballot to potentially undertake protected action in relation to unresolved bargaining issues. The matter was heard on 6 December 2023, with both parties having reached an agreement regarding the terms of a draft protected action ballot order. The Commission was satisfied that the unions had genuinely attempted to reach agreement with the employer and that all legal requirements for the ballot had been met.

The key legal issue before the Deputy President was whether the conditions for a protected action ballot order under section 437 of the Fair Work Act 2009 were satisfied. Specifically, the Commission had to determine if the notification period was appropriate and if all procedural requirements under section 443 of the Act had been fulfilled. The unions provided declarations confirming their bargaining efforts and the employer's compliance with the Act's provisions. The Deputy President was also required to set a closing date for the ballot voting period under section 443(3)(c) of the Act.

The Deputy President concluded that the unions had met the necessary criteria for the ballot order and granted the application. The Commission determined that the ballot period would close on 20 December 2023. Vero Engagement & Voting Solutions Pty Ltd, approved as a ballot agent, would conduct the ballot. Additionally, the Commission set a date for a compulsory conciliation conference under section 448A of the Act, aiming to facilitate further negotiations between the parties.

In summary, the Fair Work Commission approved the unions' application for a protected action ballot order, setting a closure date for voting and scheduling a conciliation conference to encourage continued bargaining efforts.

Association of Professional Engineers, Scientists and Managers, Australia, The, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd T/A BHP Mitsubishi Alliance (BMA)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established