Mining and Energy Union v Giacci Bros Pty Ltd

[2023] FWC 3185

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Giacci Bros Pty Ltd

(B2023/1322)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 4 DECEMBER 2023

Proposed protected action ballot of employees of Giacci Bros 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 Giacci Bros Pty Ltd (Giacci or Employer).

On 1 December 2023, the Commission was advised that Giacci, 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 Mr Jeremy McWilliams on behalf 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 Giacci, 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. 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 18 January 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR768907.

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 involved 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] This is, in effect, 30 working days from the making of the Order, as sought in the application. It is also the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Mining and Energy Union (MEU) filed an application with the Fair Work Commission under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning specific employees of Giacci Bros Pty Ltd. The MEU, as the applicant, requested the ballot to be conducted by the Australian Electoral Commission, aiming to facilitate a protected action by the employees. Giacci Bros Pty Ltd did not object to the application, and thus, the Deputy President Hampton decided to proceed with the matter based on the submitted documents without the need for a hearing.

The primary legal issue the court had to address was whether the MEU had fulfilled all the requirements set forth in section 443(1) of the Act, including demonstrating that it had genuinely attempted to reach an agreement with Giacci Bros Pty Ltd. The MEU presented a declaration by Mr Jeremy McWilliams, which outlined the steps taken during the bargaining process and affirmed the union's genuine efforts to negotiate. The court had to verify if these efforts met the statutory criteria for a protected action ballot.

Upon reviewing the submitted material, including Mr McWilliams' declaration, the Deputy President Hampton was satisfied that all the necessary conditions under section 443(1) of the Act had been met. The court confirmed that a notification time was applicable to the proposed agreement and that the MEU had indeed been genuinely trying to reach an agreement with Giacci Bros Pty Ltd. Consequently, the court issued an order granting the MEU's application and set the closing date for voting in the ballot as 18 January 2023. The decision also established this date as the ballot period for the purposes of section 448A(2) of the Act.

In addition to granting the ballot order, the court issued a separate order in PR768907. The matter was assigned to another Member of the Commission to conduct a compulsory conciliation conference under section 448A. This Member will issue an order requiring the attendance of all bargaining representatives at the conference and is likely to issue directions to ensure the parties are prepared 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