Australian Workers' Union v Department of Energy, Environment and Climate Action

[2024] FWC 2991

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Department of Energy, Environment and Climate Action

(B2024/1399)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 28 OCTOBER 2024

Proposed protected action ballot of employees of the Department of Energy, Environment and Climate Action

This is an application by the Australian Workers’ Union (AWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Department of Energy, Environment and Climate Action (DEECA or Employer).

On 28 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application and did not seek to be heard.

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 Ross Kenna, Lead 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 DEECA, 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 Fair Vote Services Pty Ltd (FVS). FVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently 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 12 November 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780688.
The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template.

This matter will be assigned to another 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

DEPUTY PRESIDENT

[1] [2024] FWC 1775.

[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

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 the Department of Energy, Environment and Climate Action (DEECA). The application was made under section 437 of the Fair Work Act 2009. The AWU sought to conduct the ballot to explore the possibility of protected action, given the ongoing difficulties in reaching an agreement with DEECA.

The legal issues before the Commission included whether the AWU had satisfied all the requirements under section 443(1) of the Act for a protected action ballot. This involved verifying that the union had genuinely tried to reach an agreement with DEECA, and that a notification period for the proposed agreement existed. Additionally, the court needed to determine the appropriate closing date for the voting period under section 443(3)(c) of the Act.

The Commission found that the AWU had met all the necessary criteria for the ballot. Given that DEECA did not object to the application and did not seek to be heard, Deputy President Wright decided to determine the matter on the submitted papers. The Commission confirmed that the ballot agent, Fair Vote Services Pty Ltd, was duly authorised to conduct the ballot. The closing date for voting was set as 12 November 2024, which was also aligned with the ballot period under section 448A(2) of the Act. Consequently, an order was issued to facilitate the ballot and a compulsory conciliation conference under section 448A of the Act.

An additional order was issued in PR780688 to conduct the conciliation conference. The draft order structure was adjusted to reflect the Fair Work Commission's standard template. Another member of the Commission was assigned to conduct the conference, and an order was issued to require the attendance of all bargaining representatives in the proposed enterprise agreement. Directions were also likely to be issued to ensure the parties engaged in meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established