Construction, Forestry, Maritime, Mining and Energy Union v BHP Iron Ore Pty Ltd

[2023] FWC 2573

[2023] FWC 2573

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

BHP Iron Ore Pty Ltd

(B2023/1055)

DEPUTY PRESIDENT BEAUMONT PERTH, 10 OCTOBER 2023

Proposed protected action ballot of employees of BHP Iron Ore Pty Ltd

1. This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (the Applicant) made under s 437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order in relation to certain employees of BHP Iron Ore Pty Ltd (BHP). 

1. The application was lodged with the Commission on the afternoon of 5 October 2023 and was initially allocated to Deputy President Hampton. The Commission’s Bargaining Team sought a response from BHP which, following the grant of an extension, was forthcoming on the afternoon of 6 October 2023. In its response, BHP objected to the application on the basis that some of the questions contained in the application were not sufficiently clear and capable of being understood. BHP also sought an extension to the notice period pursuant to ss 414(2)(b) and 443(5) of the Act.

1. On 6 October 2023, following receipt of BHP’s response, the matter was allocated to my Chambers, directions were issued, and the matter was listed for hearing. On Saturday, 7 October 2023, the Applicant wrote to my Chambers seeking an adjournment of the hearing and amendments to the directions, to allow the parties to explore whether a consent position could be reached.  BHP consented to the approach.  I was content to adjourn the hearing and grant an extension of time for the parties to file their materials.

1. On 9 October 2023, the Applicant filed revised draft orders addressing BHP’s concerns.  BHP confirmed that it did not oppose the making of orders in the amended terms proposed by the Applicant.

1. Based on the materials filed and observing the agreed position of the parties, I considered it appropriate to determine the matter on the papers without holding a hearing.  

1. Regarding whether the circumstances warrant an extension to the notice period, I have found that they do. Section 443(5) of the Act provides that the Commission can require a longer period of notice to be given where it is satisfied that there are exceptional circumstances justifying this. The onus is on BHP to provide evidence that would satisfy the Commission that there are exceptional circumstances in this instance. To warrant an extended period of notice, the Commission must be satisfied both as to the existence of exceptional circumstances and the fact that these justify the granting of the extended notice.

1. It is uncontroversial that the expression ‘exceptional circumstances’ was considered by Lawler VP in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation,[1] and in National Tertiary Education Industry Union v Charles Darwin University, the Full Bench concluded that the Vice President’s discussion was apposite to the phrase ‘exceptional circumstances justifying’ in s 443(5).[2] 

1. In my view, the circumstances so described in the witness statement of Brett Kosovich, Rail Operations Manager of BHP, justify the extension of the notice period up to four working days.  I have therefore extended the notice period accordingly. 

1. Based on the material before me, including the declaration of Mr Warren Johncock, Organiser – Pilbara Rail, in which he sets out the steps taken by the Applicant in bargaining with BHP and confirms that the Applicant has been, and is, genuinely trying to reach agreement with BHP, 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.

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[3] and consequently is authorised to conduct the ballot. For the purposes of s 443(3)(c) of the Act, a ballot period of seven (7) days from the Commencement Date, to be decided by CiVS, has been determined by the Commission.

1. An Order has been separately issued in PR766902.

1. This matter will shortly be listed for a s 448A compulsory conciliation conference.  An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference.  Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

Matter determined on the papers.

[1] (2007) 167 IR 4.

[2] [2018] FWCFB 4011, [20]–[21].

[3] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

Printed by authority of the Commonwealth Government Printer

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