Mining and Energy Union v Gladstone Ports Corporation Limited Summary

[2024] FWC 3256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Gladstone Ports Corporation Limited

(B2024/1524)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 NOVEMBER 2024

Proposed protected action ballot of employees of Gladstone Ports Corporation 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 Gladstone Ports Corporation Limited (Gladstone Ports or Employer).

I note that the Australian Worker’s Union (AWU), the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Plumbing Division and electrical and Energy Services Division (CEPU-PPTEU and CEPU-ETU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) [1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 22 November 2024 the Commission was advised that the Employer, in effect, did not object to the Application, as amended following discussions between the parties.

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 Jeffrey Michael Scales, District Vice President, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Gladstone Ports, 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 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 11 December 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 PR781601.

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] B2024/1521, B2024/1500, B2024/1503, B2024/1504 and B2024/1518 respectively.

[2] This is, in effect, 12 working days from the making of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Mining and Energy Union (MEU) has applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Gladstone Ports Corporation Limited. This application was made under section 437 of the Fair Work Act 2009. The MEU sought the order to allow the employees to vote on whether to take protected industrial action in response to a proposed enterprise agreement that they believed did not adequately address their needs. Gladstone Ports did not object to the application, which led to the Commission deciding to determine the matter on the papers without holding a hearing.

The central legal issue before the Commission was whether the MEU had satisfied the statutory requirements to hold a protected action ballot. The requirements included demonstrating that the union had genuinely tried to reach an agreement with Gladstone Ports and that a notification period had passed. The MEU needed to provide evidence that the union had engaged in good faith negotiations and that the proposed agreement had been under consideration for a sufficient amount of time. The Commission also needed to ensure that the ballot would be conducted by an authorised agent.

The Deputy President of the Commission found that the MEU had met all the necessary statutory requirements. The evidence provided by the union, including the declaration from Jeffrey Michael Scales, District Vice President, showed that the union had genuinely tried to reach an agreement with Gladstone Ports. The Commission was also satisfied that the notification period had passed and that the ballot would be conducted by Democratic Outcomes Pty Ltd (CiVS), an approved ballot agent. The Commission determined that the voting period would close on 11 December 2024.

In its decision, the Commission issued an order for the ballot to proceed as requested by the MEU. This matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference, where all bargaining representatives will be required to attend and engage in meaningful negotiations. The Commission will also issue directions to ensure that the parties are prepared to negotiate effectively at the conference.

Mining and Energy Union v Gladstone Ports Corporation Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established