Australian Workers' Union v Monadelphous Engineering Pty Ltd

[2025] FWC 554

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Monadelphous Engineering Pty Ltd

(B2025/276)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 FEBRUARY 2025

Proposed protected action ballot of employees of Monadelphous Engineering 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 Monadelphous Engineering Pty Ltd (Monadelphous or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 21 February 2025, 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 Craig Sell, Central District 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 Monadelphous, 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 (Fair Vote). Fair Vote 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 6 March 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template.

An Order has been separately issued in PR784681.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. 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] B2025/271.

[2] This is, in effect, 8 working days from the making of the Order and is the date that directly coincides with the ballot period of the related matter.

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 Monadelphous Engineering Pty Ltd (Monadelphous). The AWU sought this order under section 437 of the Fair Work Act 2009, to allow its members to vote on proposed protected action. This application arose from negotiations for an enterprise agreement, which had been unsuccessful. The Australian Manufacturing Workers’ Union (AMWU) also filed a separate application for a protected action ballot order concerning the same proposed enterprise agreement.

The Fair Work Commission was required to determine whether the AWU had met the necessary criteria to conduct a protected action ballot. This involved assessing the union's efforts to reach an agreement with Monadelphous and ensuring that all legal requirements were satisfied. Specifically, the Commission had to confirm that the notification period for the proposed agreement had been met and that all provisions of section 443 of the Act had been complied with. Additionally, the Commission had to establish a closing date for the voting period in accordance with section 443(3)(c) of the Act.

In making its decision, the Commission reviewed the declaration of Craig Sell, the Central District Secretary of the AWU, which outlined the union's bargaining efforts with Monadelphous. The Commission was satisfied that the AWU had genuinely attempted to reach an agreement and that all conditions for a protected action ballot had been met. Consequently, the Commission issued an order authorising the AWU to conduct the ballot through Fair Vote Services Pty Ltd, which was recognised as an eligible ballot agent. The voting period was set to close on 6 March 2025, effectively eight working days from the issuance of the order. The Commission also noted that this date aligned with the ballot period of the related matter handled by the AMWU. The Commission further directed that a compulsory conciliation conference would be held to facilitate negotiations between the parties.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established