Australian Workers' Union, The v DBNGP (WA) Nominees Pty Ltd as Trustee for DBNGP (WA) Pipeline Trust Summary

[2024] FWC 1987

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The
v

DBNGP (WA) Nominees Pty Ltd As Trustee For DBNGP (WA) Pipeline Trust

(B2024/943)

DEPUTY PRESIDENT BINET

PERTH, 26 JULY 2024

Proposed protected action ballot of employees of The Trustee For DBNGP (WA) Pipeline Trust – Application granted

On 25 July 2025 the Australian Workers’ Union (AWU) applied to the Fair Work Commission (FWC) for a protected action ballot order (Order) pursuant to section 437 of the Fair Work Act 2009 (FWAct) in relation to bargaining for a new agreement (Proposed Agreement).

The Application was supported by a statutory declaration from Mr Doug Heath, National Organiser, Oil and Gas of the AWU.

The AWU seek an order for a ballot to be conducted of employees of The Trustee For DBNGP (WA) Pipeline Trust (DBNGP) who will be covered by the Proposed Agreement and who are represented by the AWU, or who are bargaining representatives for themselves but are members of the AWU (Employees).

DBNGP advised the FWC on 25 July 2025 that it objected to the Application.

The Application was therefore listed for a Conference at 2:30pm (AWST) on 26 July 2024 (Conference), and if necessary, a Hearing at 4pm (AWST) 26 July 2024 (Hearing).

Directions for the filing of materials in advance of the Hearing were issued to the parties on 25 July 2024 (Directions).

Shortly prior to the commencement of the Conference the parties advised that in light of agreed amendments to the proposed Order DBNGP no longer objected to the Application.

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 Doug Heath, National Organiser, 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 it, 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 9 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777576.

The Application will be listed for a s.448A compulsory conciliation conference (Post PABO Conference). An Order will be issued requiring all bargaining representatives for the Proposed Agreement to attend the Post PABO Conference. Directions will also be issued to ensure that the parties attend the Post PABO Conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 11 days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of The Australian Workers’ Union against DBNGP (WA) Nominees Pty Ltd as Trustee for DBNGP (WA) Pipeline Trust, the Fair Work Commission was asked to decide whether to grant a protected action ballot order under section 437 of the Fair Work Act 2009. The Australian Workers’ Union sought the order to conduct a ballot of employees of DBNGP (WA) Pipeline Trust, represented by the union, to approve a proposed agreement. DBNGP initially objected to the application but later withdrew its objection following amendments to the proposed order.

The legal issues before the Deputy President involved confirming that the union had genuinely attempted to reach agreement with the employer and that all procedural requirements of the Fair Work Act were met. Specifically, the union needed to demonstrate that a notification period existed for the proposed agreement and that the union had made a genuine effort to negotiate. The Deputy President needed to ensure that the proposed ballot was fair and conducted by an approved agent.

The Deputy President concluded that the union had indeed met all the requirements for a protected action ballot. The declaration by Doug Heath, National Organiser of the union, was sufficient to establish the union's genuine efforts to negotiate. The proposed ballot agent, Democratic Outcomes Pty Ltd, was approved and authorised to conduct the ballot. The Deputy President set the closing date for voting on the proposed agreement as 9 August 2024, effectively establishing the ballot period. The Deputy President also arranged for a compulsory conciliation conference post-ballot to ensure meaningful negotiations.

The Fair Work Commission granted the application for a protected action ballot order. The order mandates the union to conduct the ballot by Democratic Outcomes Pty Ltd and sets the closing date for voting on the proposed agreement. Additionally, the Commission scheduled a compulsory conciliation conference post-ballot to facilitate further negotiations between the parties.

Australian Workers' Union, The v DBNGP (WA) Nominees Pty Ltd as Trustee for DBNGP (WA) Pipeline Trust

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established