Australian Workers' Union v Henty Gold Pty Ltd

[2024] FWC 2677

[2024] FWC 2677

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v
Henty Gold Pty Ltd

(B2024/1250)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 26 SEPTEMBER 2024

Proposed protected action ballot by employees of Henty Gold Pty Ltd 

1. 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 Henty Gold Pty Ltd (Henty Gold or Employer). 

1. On 26 September 2024 the Commission was advised that the Employer, in effect, did not object to the Application as amended following discussions between the parties.

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

1. On the basis of the material before me, including the declaration of Robert Flanagan, Assistant Branch Secretary, 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 Henty Gold, 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. 

1. The ballot is to be conducted by the Australian Electoral Commission (AEC). 

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

1. I observe that the Parties agreed for the AWU to provide the following undertaking, which has also been added to the Order: 

Safety Undertakings  

The AWU undertakes that: 

a.   in any period of protected industrial action an electrician and diesel fitter remain available for any emergency scenario for the underground mine. 

b.   in a 1 hour or 4 hour period of protected industrial action a fixed plant fitter will remain available for the mill.  

c.   the following will also occur: 

a.any work required to be performed to ensure that plant, equipment, UG mine, tailings storage facility (TSF) and hazardous materials are in a safe condition prior to or during the period of industrial action. 

b.any work on an urgent basis to avert and/or respond to a safety risk that has arisen and it was not reasonably foreseeable that the safety risk would arise including mobilisation of ERT members to address the safety concern. 

It is accepted that there is a statutory requirement that protected industrial action must be carried out in a manner which does not involve personal injury, or the wilful or reckless destruction of, or damage to property. There be further dialogue between the company and the union to ensure the statutory requirement is complied with. Any concerns arising from that dialogue will be referred to the FWC for assistance. 

1. The terms of clause 1 of the Order have also been amended to reflect the Commission’s standards practice as the details of the employees to be balloted are confirmed in clause 3.

1. An Order has been separately issued in PR779671. 

1. 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 for 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] This is, in effect, 30 working days from the date of the Order and is the minimum period required by the AEC to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

<PR779672>