Mining and Energy Union v Essential Energy

[2024] FWC 2382

[2024] FWC 2382

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Essential Energy

(B2024/1133)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 4 SEPTEMBER 2024

Proposed protected action ballot of employees of Essential Energy

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 Essential Energy (Essential or Employer).

1. I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

1. On 3 September 2024, the Commission was advised that the Employer, in effect, did not object to the Application, as amended following discussions between parties. This included an extended period of written notice for the taking of protected industrial action and a safety commitment.

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 Todd Ferguson, Organiser, 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 Essential, 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 25 September 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended minimum period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of four (4) working days applies to the items listed within Clause 5 of the Order. 

1. The structure of the Applicant’s draft order has been amended to reflect the Fair Work Commission’s standard template.

1. An Order has been separately issued in PR778922.

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 matter. 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] B2024/1100.

[2] This is, in effect, 15 working days from the making of the Order and was the period sought in the amended application.

Printed by authority of the Commonwealth Government Printer

<PR778923>