"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Anglo Coal (Dawson Services) Pty Ltd

[2024] FWC 3046

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v

Anglo Coal (Dawson Services) Pty Ltd

(B2024/1422)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 4 NOVEMBER 2024

Proposed protected action ballot of employees of Anglo Coal (Dawson Services) Pty Ltd

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU 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 Anglo Coal (Dawson Services) Pty Ltd (Anglo Coal or Employer).

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 4 November 2024, the Commission was advised that the Employer, in effect, did not object to the Application on the condition that the following safety undertaking is incorporated into the AMWU’s notices of industrial action:

The AMWU undertakes to ensure that in an emergency situation where there is a risk to personal health and safety and where no other workers are available, AMWU members will be available to perform work. AMWU members will not engage in industrial action that would endanger the life, personal safety, health or welfare of the population or part thereof

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 Philip Golby, Organiser, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Anglo Coal, 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 (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 18 November 2024.[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 PR780927.

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] B2024/1423.

[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 Manufacturing Workers’ Union (AMWU), acting on behalf of its members employed by Anglo Coal (Dawson Services) Pty Ltd, applied to the Fair Work Commission for a protected action ballot order under Section 437 of the Fair Work Act 2009. The AMWU sought this order to enable its members to vote on potential industrial action in relation to a proposed enterprise agreement. Anglo Coal did not object to the application, provided that the AMWU incorporated a safety undertaking in its notices of industrial action, ensuring that members would be available to perform work in emergency situations where there was a risk to personal health and safety and where no other workers were available. The Commission determined the matter on the papers without holding a hearing.

The primary legal issue before the Commission was whether the AMWU had met the requirements under Section 443(1) of the Fair Work Act to apply for a ballot order. The Commission needed to ascertain if the AMWU had genuinely attempted to negotiate an agreement with Anglo Coal and whether the notification period for the proposed agreement was met. Additionally, the Commission had to confirm that the ballot would be conducted by an approved agent, Democratic Outcomes Pty Ltd (CiVS), and determine a closing date for the voting period. The AMWU's declaration by Philip Golby, the Organiser, detailing the bargaining efforts and the union's genuine attempts to reach an agreement, was central to this determination.

The Deputy President of the Commission concluded that the AMWU had fulfilled the necessary criteria for a ballot order. The union had genuinely tried to reach an agreement with Anglo Coal, as evidenced by the steps outlined in Golby's declaration. Furthermore, the notification period for the proposed agreement was established, and all requirements under Section 443(1) of the Act had been met. The Commission also confirmed that CiVS was an approved agent for conducting the ballot and set the closing date for voting as 18 November 2024. Consequently, the Commission issued an order in accordance with the Fair Work Commission’s standard template, assigning the matter to another Member of the Commission for a compulsory conciliation conference. This decision allowed the AMWU to proceed with the protected action ballot while ensuring safety undertakings were in place.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established