Mining and Energy Union v Helensburgh Coal Pty Ltd Summary

[2025] FWC 1469

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Helensburgh Coal Pty Ltd

(B2025/825)

DEPUTY PRESIDENT DEAN

CANBERRA, 28 MAY 2025

Proposed protected action ballot of employees of Helensburgh Coal 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 Helensburgh Coal Pty Ltd (Helensburgh or Employer).

The Commission was initially advised that the Employer objected to the Application and a conference was listed on 28 May 2025. However, the Employer subsequently withdrew its objection just prior to the conference.

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 Mark Jenkins, Union Official, 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 Helensburgh, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote 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 7 June 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR787738.

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 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 10 calendar days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Mining and Energy Union applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009 in relation to certain employees of Helensburgh Coal Pty Ltd. Initially, Helensburgh objected to the application, but later withdrew its objection. The matter proceeded on the papers without a hearing. The Commission determined that the union had met all the requirements for a protected action ballot, including a notification period and the union's genuine attempts to reach agreement with Helensburgh. The ballot is to be conducted by Fair Vote Services Pty Ltd, an approved agent under section 468A of the Act.

The key legal issues the Commission needed to address were whether the union had provided sufficient notification time, whether the union had genuinely tried to reach agreement with the employer, and whether all requirements under section 443 of the Act had been satisfied. The Commission found that the union had met these requirements and was therefore satisfied that a ballot could proceed. The decision also set the closing date for the ballot at 7 June 2025, which was ten calendar days from the date of the order. Additionally, the Commission noted that a compulsory conciliation conference would be conducted by another member of the Commission, and it would require the attendance of all bargaining representatives involved in the proposed enterprise agreement.

In summary, the Fair Work Commission granted the Mining and Energy Union's application for a protected action ballot order. The ballot was to be conducted by an approved agent, and the voting period was set to close on 7 June 2025. The decision also noted that further conciliation efforts would be undertaken by another member of the Commission to facilitate negotiations between the parties involved in the proposed enterprise agreement.

Mining and Energy Union v Helensburgh Coal Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established