Mining and Energy Union v Essential Energy

[2024] FWC 1925

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Essential Energy

(B2024/921)

COMMISSIONER MCKENNA

SYDNEY, 22 JULY 2024

Proposed protected action ballot of employees of Essential Energy

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 (EE or Employer).

In proceedings on 22 July 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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 it, I am satisfied that there is a notification time in relation to the proposed agreement and that all 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 3 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended 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 4 (four) working days applies to the items listed within Clause five (5) of the Order.

An Order has been separately issued in PR777383.

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

COMMISSIONER

[1] This is, in effect, 10 working days from the making of the Order and was the date sought in the application.

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CaseChat Overview and Summary

The Mining and Energy Union (MEU) sought an order from the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 to conduct a protected action ballot among certain employees of Essential Energy (EE). The proposed ballot aimed to gather employee support for potential industrial action. The application was heard by Commissioner McKenna in Sydney on 22 July 2024. Notably, EE did not object to the application, facilitating the Commission's consideration of the matter.

The legal issues before the Commission involved verifying if the MEU had genuinely attempted to reach an agreement with EE and if all statutory requirements for a protected action ballot were fulfilled. The Commission had to assess whether the notification period for the proposed agreement was met and if all necessary criteria under section 443 of the Act were satisfied. Additionally, the Commission needed to determine if there were exceptional circumstances justifying an extended notice period for the industrial action, as stipulated under section 443(5) of the Act.

Commissioner McKenna found that the MEU had genuinely attempted to reach an agreement with EE and that all requirements under section 443(1) of the Act were met. The Commission also concluded that there were relevant exceptional circumstances justifying an extended notice period of four working days for the industrial action, as outlined in Clause five of the Order. Furthermore, the Commission determined that Democratic Outcomes Pty Ltd, an approved ballot agent, would conduct the ballot, which would close on 3 August 2024. The Commission further directed that a compulsory conciliation conference would be held to facilitate negotiations between the parties.

The Commission issued an Order permitting the protected action ballot to proceed, with specific conditions regarding the notice period for the industrial action. The Commission also directed that the compulsory conciliation conference would be held, and necessary directions would be issued to ensure the parties' attendance and readiness for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established