Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Anglo Coal (Dawson Services) Pty Ltd Summary

[2024] FWC 3047

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Anglo Coal (Dawson Services) Pty Ltd

(B2024/1423)

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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU 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 “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 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 CEPU’s notices of industrial action:

The ETU 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, ETU members will be available to perform work. ETU 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 Craig Thomas, State Organiser, setting out the steps taken by the CEPU 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.

An Order has been separately issued in PR780930.

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] B2024/1422.

[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 Fair Work Commission (FWC) considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order in relation to employees of Anglo Coal (Dawson Services) Pty Ltd. The CEPU sought to conduct a ballot for industrial action, and Anglo Coal did not object to the application on the condition that a safety undertaking was included in the notices of industrial action. This undertaking ensured that union members would be available to perform work in emergency situations where there was a risk to personal health and safety and no other workers were available. Additionally, it ensured that members would not engage in industrial action that would endanger the life, personal safety, health, or welfare of the population.

The primary legal issue the FWC had to decide was whether the CEPU had met the requirements under s.443(1) of the Fair Work Act 2009 to be granted a protected action ballot order. This included verifying that there had been a notification time in relation to the proposed enterprise agreement and that the CEPU had genuinely tried to reach an agreement with Anglo Coal. The FWC also had to determine the appropriate date by which voting would close and the ballot period for the purposes of s.448A(2) of the Act. The FWC concluded that the CEPU had met all the necessary requirements and granted the ballot order, with the condition that the safety undertaking was incorporated into the notices of industrial action.

In making its decision, the FWC relied on the declaration of Craig Thomas, the State Organiser of CEPU, which outlined the steps taken by the union in bargaining with Anglo Coal and its efforts to reach an agreement. The FWC also noted that Democratic Outcomes Pty Ltd (CiVS) was approved to conduct the ballot and that the date for closing voting was set as 18 November 2024. The FWC further determined that the matter would be assigned to another Member for a compulsory conciliation conference, requiring the attendance of all bargaining representatives in the proposed enterprise agreement.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Anglo Coal (Dawson Services) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established