Australian Workers' Union v NRG Gladstone Operating Services Pty Ltd

[2025] FWC 32

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

NRG Gladstone Operating Services Pty Ltd

(B2025/1)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 JANUARY 2025

Proposed protected action ballot of employees of NRG Gladstone Operating Services 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 NRG Gladstone Operating Services Pty Ltd (NRG or Employer).

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Australian Municipal, Administrative, Clerical and Services Union (ASU) and Mining and Energy Union (MEU)[1] have made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement

On 3 January 2025, the Commission was advised that the Employer, in effect, did not object to the Application, as amended following discussion between the parties.

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 Kris Adams, 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 NRG, 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 20 January 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended minimum period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of four (4) working days applies to the items listed within Clause 14 of the Order.

An Order has been separately issued in PR783000.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. 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] Respectively, B2025/2, B2025/3, B2025/4 and B2025/5.

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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) has applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of NRG Gladstone Operating Services Pty Ltd. The AWU sought the order under section 437 of the Fair Work Act 2009. The application was made in the context of an enterprise agreement negotiation process, and the AWU indicated that it had been genuinely trying to reach agreement with NRG. Other unions also made separate applications for a ballot order in relation to the same proposed enterprise agreement.

The legal issues before the Fair Work Commission included whether the AWU had satisfied the requirements under section 443 of the Fair Work Act to conduct a ballot for protected industrial action. This involved verifying that the AWU had genuinely been trying to reach agreement with NRG and that the necessary notification period had been met. The Commission also had to consider whether there were exceptional circumstances that justified extending the minimum period of written notice for taking industrial action. The decision hinged on whether the AWU met the statutory criteria and whether the proposed ballot was conducted by an approved agent, which in this case was Fair Vote Services Pty Ltd.

The Deputy President Hampton determined that the AWU had met all the requirements under section 443 of the Fair Work Act, including the notification time and genuine bargaining efforts. The Commission accepted that there were relevant exceptional circumstances justifying an extended notice period for the items listed within Clause 14 of the Order. The Commission set 20 January 2025 as the closing date for voting, which was ten working days from the making of the Order. The Deputy President also noted that the Employer did not object to the application. The Fair Work Commission issued an Order for the ballot to proceed and scheduled a compulsory conciliation conference with other unions involved in the negotiation process.

The final orders included granting the AWU's application for a protected action ballot order, setting the closing date for voting, and extending the notice period for certain items in the proposed enterprise agreement. The decision also mandated a compulsory conciliation conference to facilitate meaningful negotiations among all parties involved.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established