Mining and Energy Union v Flyash Australia Pty Limited T/A Flyash Australia Pty Limited

[2024] FWC 1377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Mining and Energy Union
v

Flyash Australia Pty Limited T/A Flyash Australia Pty Limited

(B2024/579)

DEPUTY PRESIDENT SAUNDERS

NEWCASTLE, 27 MAY 2024

Proposed protected action ballot of employees of Flyash Australia Pty Limited

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 Flyash Australia Pty Ltd (Flyash or Employer).

On 27 May 2024, the Commission was advised that the Employer did not, in effect, 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 Matthew Howard, 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 agreement with Flyash, 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 9 July 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR775362.

The s.448A compulsory conciliation conference will be held at the Fair Work Commission in Newcastle at 10am on 17 June 2024.

DEPUTY PRESIDENT

[1] This is, in effect, thirty (30) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has dealt with an application by the Mining and Energy Union (MEU) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Flyash Australia Pty Limited (Flyash). The MEU, seeking to conduct a ballot to potentially authorise protected action by its members, submitted the application. Flyash, the employer, did not object to the application, allowing the Deputy President to decide the matter on the submitted papers without a hearing. The application pertains to a proposed agreement that is subject to notification time and requires adherence to the requirements of section 443(1) of the Act.

The legal issues central to this case revolve around whether the MEU had genuinely attempted to reach an agreement with Flyash and if all statutory requirements for a protected action ballot were met. The Deputy President examined the declaration by Matthew Howard, District Vice President of the MEU, which outlined the union's bargaining efforts and its genuine intent to reach an agreement. The determination of these issues hinged on the satisfaction of the notification time requirement and compliance with the Act’s stipulations.

Upon reviewing the material, including the MEU's declaration, the Deputy President concluded that the union had indeed been genuinely attempting to negotiate with Flyash and that all necessary conditions under section 443(1) of the Act were fulfilled. Consequently, the Commission authorised the ballot to be conducted by the Australian Electoral Commission (AEC). The Deputy President also set the closing date for voting at 9 July 2024, which aligns with the 30 working days stipulated in the application. Additionally, the compulsory conciliation conference under section 448A of the Act was scheduled for 17 June 2024 at the Fair Work Commission in Newcastle.

In light of the findings, an order was issued, allowing the protected action ballot to proceed. The Deputy President's decision ensures that the union's application is processed in accordance with the legal framework provided by the Fair Work Act, while also setting specific timelines for the ballot and the subsequent conciliation conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established