Australian Workers' Union v Koppers Carbon Materials and Chemicals Pty Ltd

[2024] FWC 1670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Koppers Carbon Materials and Chemicals Pty Ltd

(B2024/812)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 26 JUNE 2024

Proposed protected action ballot of employees of Koppers Carbon Materials and Chemicals Pty Ltd.

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 Koppers Carbon Materials and Chemicals Pty Ltd (Koppers Carbon Materials or Employer).

On 25 June 2024, the Commission was advised that the Employer, in effect, did not object 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 Tegan Drage, 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 Koppers Carbon Materials, 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 trading as CiVS (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 17 July 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 PR776410.

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, fifteen (15) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Koppers Carbon Materials and Chemicals Pty Ltd. The application was made before the Fair Work Commission, which was tasked with determining whether the requirements for a protected action ballot were met. Koppers Carbon Materials did not object to the application, leading the Deputy President to decide the matter on the submitted documents without a hearing.

The key legal issues before the Commission were whether the AWU had genuinely tried to reach an agreement with Koppers Carbon Materials and if all statutory requirements for a ballot had been fulfilled. The AWU's declaration, along with evidence of their bargaining efforts, satisfied the Commission that the union had indeed been genuinely attempting to reach an agreement. Furthermore, the Commission was satisfied that the notification period for the proposed agreement was met, and all necessary criteria under section 443(1) of the Act were complied with.

The Deputy President determined that Democratic Outcomes Pty Ltd trading as CiVS, an approved ballot agent, would conduct the ballot. The closing date for voting was set as 17 July 2024, establishing the ballot period for compulsory conciliation purposes under section 448A(2) of the Act. An Order was issued for a compulsory conciliation conference to be conducted by another Commission member, requiring the attendance of all bargaining representatives for the proposed enterprise agreement. Directions may also be issued to ensure the parties engage in meaningful negotiations during the conference.

This decision ensures the procedural integrity of the protected action ballot process and sets the stage for further negotiations under the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established