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 (Dawson Services) Pty Ltd (Anglo or Employer).
I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] have made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.
On 11 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 MEU’s notices of industrial action:
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.
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 Heath Timmins, District Senior 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.
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 25 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 PR781104.
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] B2024/1422 and 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
<PR781105>
Details
AGLC
Mining and Energy Union v Anglo Coal (Dawson Services) Pty Ltd [2024] FWC 3102
Case
[2024] FWC 3102
Decision Date
CaseChat Overview and Summary
The Fair Work Commission was presented with an application by the Mining and Energy Union for an order that Anglo Coal (Dawson Services) Pty Ltd hold a ballot to authorise protected industrial action. This application was made under section 437 of the Fair Work Act 2009. The union sought to hold the ballot in relation to certain employees of Anglo Coal, following negotiations for an enterprise agreement. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union and the Australian Manufacturing Workers’ Union have also made applications for ballot orders in relation to the same proposed enterprise agreement. Anglo Coal did not object to the Mining and Energy Union’s application on the condition that a safety undertaking was included in the union’s notices of industrial action. The union agreed to the condition.
The Commission was required to determine whether it was appropriate to issue a ballot order and whether all of the requirements of section 443 of the Fair Work Act 2009 had been met. It was also required to determine the date by which voting is to close. The Commission noted that the union had provided a declaration by Heath Timmins, District Senior Vice President, which set out the steps taken by the union in bargaining with Anglo Coal and that the union had been, and was, genuinely trying to reach agreement with the employer. The Commission was satisfied that the union had met all of the requirements of section 443(1) of the Act and that there was a notification time in relation to the proposed agreement. The Commission also determined that voting should close on 25 November 2024.
The Deputy President determined that the application should be decided on the papers without holding a hearing. An order was issued that Anglo Coal hold a ballot to authorise protected industrial action, to be conducted by Democratic Outcomes Pty Ltd. The date by which voting is to close was determined to be 25 November 2024. A separate order was issued requiring the attendance of all bargaining representatives in the proposed enterprise agreement at a compulsory conciliation conference. Directions were also to be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.