Australian Workers' Union, The v Baker Hughes Services Australia Pty Ltd Summary

[2024] FWC 3296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s 437—Protected action

Australian Workers’ Union, The
v

Baker Hughes Services Australia Pty Ltd

(B2024/1542)

COMMISSIONER LIM

PERTH, 27 NOVEMBER 2024

Proposed protected action ballot of employees of Baker Hughes Services Australia Pty Ltd.

This decision is about the Australian Workers’ Union’s application made under s 437 of the Fair Work Act 2009 (Cth) for a protected action ballot order in relation to certain employees of Baker Hughes Services Australia Pty Ltd.

The application was lodged on Monday 25 November 2024. That same day, Baker Hughes advised the Commission that they objected to the application. I listed the matter for hearing on Wednesday 27 November 2024. Prior to the hearing, the parties informed my Chambers that they had reached a consent position, including in relation to an extended period of notice for the taking of industrial action.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me – including the declaration of Mr Doug Heath, Offshore Alliance Organiser, setting out the steps taken by the AWU in bargaining with Baker Hughes, and that it has been, and is, genuinely trying to reach agreement with Baker Hughes – 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act and consequently is authorised to conduct the ballot.

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 Wednesday 11 December 2024.[1] This also establishes the ballot period for the purpose of s 448A(2) of the Act.

Pursuant to section 443(5) of the Act, I am satisfied that there are relevant exceptional circumstances justifying an extended period of written notice for the purposes of s 414(2)(b) of the Act being longer than three (3) working days. By consent, the Commission has specified five (5) working days as the minimum period of written notice required in respect of the proposed industrial action taken by employees arising from the ballot questions in Clause 5 of the Order.

An Order has been separately issued in PR781766.

Upon issuing a protected action ballot order the Commission is required by s 448A of the Act to also make an order directing the bargaining representatives to attend a conference for the purpose of mediation or conciliation in relation to the proposed agreement. An order and directions will accordingly be issued from my Chambers requiring that the parties attend a conference.

COMMISSIONER

Determined on the papers.

[1] This is, in effect, 10 days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (AWU) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Baker Hughes Services Australia Pty Ltd. The AWU sought to ballot its members about potential protected action, as permitted under section 437 of the Fair Work Act 2009. Baker Hughes objected to the application. The Commission convened a hearing, but before the hearing, the parties reached a consent agreement on the terms of the ballot, including an extension to the notice period for industrial action. The Commission determined the matter on the papers, concluding that the AWU had met the necessary requirements for a ballot under the Act.

The primary legal issues for the Commission to decide were whether the AWU had satisfied the statutory criteria for a protected action ballot and whether the proposed ballot agent was eligible. The Commission needed to assess the bargaining history between the AWU and Baker Hughes and whether the AWU had genuinely tried to reach an agreement with Baker Hughes. Furthermore, the Commission had to determine if the proposed ballot agent was approved and if the parties had agreed to an extended notice period for industrial action. The Commission also had to establish the closing date for the ballot voting and issue a direction for the parties to attend a conference for mediation or conciliation.

The Commission found that the AWU had met all the requirements for a protected action ballot, as evidenced by the declaration from Mr. Doug Heath, the AWU’s Offshore Alliance Organiser, detailing the union’s bargaining efforts with Baker Hughes. The Commission was satisfied that the AWU had genuinely tried to reach an agreement. The proposed ballot agent, Democratic Outcomes Pty Ltd (CiVS), was approved under section 468A of the Act, and thus eligible to conduct the ballot. The Commission set the voting closing date for 11 December 2024, which was 10 days after the order was made. The Commission also accepted the parties' agreement to an extended notice period of five working days for industrial action. The Commission issued an order for the parties to attend a conference for mediation or conciliation.

The Fair Work Commission issued a protected action ballot order, specifying the ballot period and the extended notice period for industrial action. It also directed the parties to attend a conference for mediation or conciliation in relation to the proposed agreement.

Australian Workers' Union, The v Baker Hughes Services Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established