Mining and Energy Union v Central Queensland Services Pty Ltd T/A BMA

[2024] FWC 1399

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Central Queensland Services Pty Ltd T/A BMA

(B2024/702)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 29 MAY 2024

Proposed protected action ballot of employees of Central Queensland Services Pty Ltd

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 Central Queensland Services Pty Ltd T/A BMA (BMA or Employer).

I note that the Australian Rail, Tram and Bus Industry Union (ARTBIU) and the Australian Federated Union of Locomotive Employees (AFULE)[1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 28 May 2024, the Commission was advised that the Employer 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 Shane Brunker, 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 an agreement with it, 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 10 July 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 PR775428.

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] B2024/694, B2024/696.

[2] This is, in effect, 30 working days from the making of the Order, as required by the AEC.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Mining and Energy Union (MEU) filed an application under section 437 of the Fair Work Act 2009 seeking a protected action ballot order for certain employees of Central Queensland Services Pty Ltd, trading as BMA. The application was made to address a dispute concerning a proposed enterprise agreement. The Australian Rail, Tram and Bus Industry Union and the Australian Federated Union of Locomotive Employees also made separate applications for protected action ballot orders related to the same proposed agreement. The employer did not object to the application. The Deputy President of the Fair Work Commission, Hampton, decided to determine the matter on the papers without a hearing, based on the submissions and the evidence provided.

The legal issues the court had to decide included whether the MEU had genuinely tried to reach an agreement with the employer and whether all the requirements under section 443 of the Fair Work Act had been fulfilled. The Deputy President considered the declaration from the MEU's District Vice-President, Shane Brunker, which outlined the steps taken by the union in bargaining with the employer and confirmed that the union had genuinely attempted to reach an agreement. The court was satisfied that the notification time for the proposed agreement had been met and that all conditions under section 443(1) of the Act were fulfilled.

The Deputy President ordered that the ballot for the proposed enterprise agreement be conducted by the Australian Electoral Commission, with voting to close on 10 July 2024. This date established the ballot period for the purposes of section 448A(2) of the Act. The matter was assigned to another Member of the Commission to conduct a compulsory conciliation conference. Directions were issued to ensure that the parties attended the conference prepared to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established