“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v BHP Coal Pty Ltd

[2022] FWC 2617

[2022] FWC 2617

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

BHP Coal Pty Ltd

(B2022/1417)

DEPUTY PRESIDENT ASBURY BRISBANE, 28 SEPTEMBER 2022

Proposed protected action ballot by employees of BHP Coal Pty Ltd

1. The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”, known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) has made an application to the Fair Work Commission (the Commission) under s. 437 of the Fair Work Act 2009 (Cth) (the Act) for a Protected Action Ballot Order (the Order) in relation to a group of employees of BHP Coal Pty Ltd (Respondent).

1. Discussions were held between the parties with respect to the terms of the Order and Directions sought by the Applicant. Several amendments to the Order and Directions were proposed by the Respondent. The Applicant advised the Commission on 26 September 2022 that the Applicant had accepted the proposed amendments and the terms of the draft Order and Directions sought in the application were amended accordingly. The Respondent has confirmed that it does not consent to the Order sought, nor does it wish to be heard further in relation to the matter.  

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 statutory declaration of Kegan Scherf for the Applicant declared on 19 September 2022, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

1. The Applicant has specified in the application for a protected action ballot order that it wishes a person other than the Australian Electoral Commission to be the protected action ballot agent and has specified IRIQ Law Pty Ltd for this purpose.  A statutory declaration has been made by Mr Faiyaz Devjee, the Principal of IRIQ Law Pty Ltd, the individual who will carry out the functions of the protected action ballot agent.

1. Based on the statutory declaration made by Mr Devjee, I am satisfied as required by s. 444(1)(b)(i) that Mr Devjee is a fit and proper person to conduct the ballot. I am also satisfied, based on the statutory declaration, that as provided in s. 444(1)(b)(ii) of the Act, the requirements in Regulation 3.11 of the Fair Work Regulations 2009 have been met. 

1. An Order and Directions to the ballot agent have been separately issued in PR746300 and PR746301 respectively.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

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