Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd

[2024] FWC 3036

[2024] FWC 3036

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Anglo Coal (Capcoal Management) Pty Ltd

(B2024/1418)

DEPUTY PRESIDENT WRIGHT SYDNEY, 1 NOVEMBER 2024

Proposed protected action ballot of employees of Anglo Coal (Capcoal Management) Pty Ltd

1. This is an application by the Mining and Energy Union (MEU 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 (Capcoal Management) Pty Ltd (Anglo or Employer).

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

1. On 1 November 2024, the Commission was advised that the Employer, in effect, did not object to the Application, as amended following discussions between the parties.

1. I observe that the parties agreed for the MEU to provide the following undertaking:

The MEU 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, MEU members will be available to perform work.  MEU members will not engage in industrial action that would endanger the life, personal safety, health or welfare of the population or part thereof.

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 declaration of Jeffrey Scales, District Vice President, setting out the steps taken by the MEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Anglo, 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 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.

1. 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 15 November 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR780889.

1. 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, B2024/1406 and B2024/1407.

[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

<PR780889>