Mining and Energy Union v Bulga Coal Management Pty Limited Summary

[2024] FWC 2902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Bulga Coal Management Pty Limited

(B2024/1368)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 OCTOBER 2024

Proposed protected action ballot of employees of Bulga Coal Management Pty Limited

This is an application by the Mining and Energy Union acting through its Northern Mining and NSW Energy District Branch (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 Bulga Coal Management Pty Limited (Bulga Coal or Employer).

On 18 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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 Chad Hanson, District Vice President of the MEU, 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 Bulga 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 the Australian Electoral Commission (AEC).

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 2 December 2024. Although in its application the MEU sought a ballot period of 20 working days, the period set by the Commission is, in effect, 30 working days from the date of the Order. This is the minimum period required by the AEC to conduct a ballot of this kind. The date as determined also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780403.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Mining and Energy Union, acting through its Northern Mining and NSW Energy District Branch, has applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Bulga Coal Management Pty Limited. The application was made to facilitate a ballot for protected action due to ongoing disputes in the bargaining process between the Union and the Employer. Bulga Coal did not object to the application, leading the Commission to proceed with the matter on the basis of the submitted documents. The primary concern was whether the Union had fulfilled all necessary conditions under section 443 of the Act to warrant a protected action ballot.

The central legal issue before the Commission was whether the Union had genuinely attempted to reach an agreement with the Employer and whether all statutory requirements for a protected action ballot were met. This included verifying if the Union had provided adequate notification time as required by the Act and confirming that the Union had taken all necessary steps to negotiate in good faith. The evidence provided, particularly the declaration by Chad Hanson, District Vice President of the MEU, played a crucial role in establishing these points. The Commission needed to ascertain if the Union's efforts in bargaining were both genuine and comprehensive, thereby justifying the need for a ballot to proceed.

The Commission, satisfied with the Union's demonstration of genuine bargaining efforts, determined that all statutory prerequisites for a ballot were met. The Deputy President concluded that the Union had acted in accordance with the provisions of the Act and had provided sufficient notification time. Consequently, the Commission granted the application and authorised the Australian Electoral Commission to conduct the ballot. The closing date for voting was set for 2 December 2024, effectively establishing a 30 working day ballot period, which aligns with the minimum requirement stipulated by the AEC. Additionally, the matter will be assigned to another Commission member to oversee a compulsory conciliation conference, ensuring that all bargaining representatives engage in meaningful negotiations.

The Commission issued an order in PR780403 and separately mandated that the conciliation conference be conducted, requiring the attendance of all bargaining representatives. Directions will also be issued to ensure that the parties are prepared to negotiate effectively. This decision underscores the importance of adhering to statutory processes in industrial relations and ensures that the rights of both employers and employees are protected during the bargaining process.

Mining and Energy Union v Bulga Coal Management Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established