Mining and Energy Union v Origin Energy Eraring Services Pty Limited

[2024] FWC 3543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Origin Energy Eraring Services Pty Limited

(B2024/1650)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 19 DECEMBER 2024

Proposed protected action ballot of employees of Origin Energy Eraring Services 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 Origin Energy Eraring Services Pty Limited (Origin Energy Eraring or Employer).

On 18 December 2024, the Commission was advised that the Employer objected to the Application and proposed orders in their current form. In the circumstances, I listed the matter for hearing on 20 December 2024.

On 19 December 2024, the MEU advised my Chambers that the MEU and the Employer had reached agreement on the terms of an amended order. I therefore vacated the hearing and have decided to determine the matter on the papers.

On the basis of the material before me, including the declaration of Matthew Howard, District Vice President of the MEU Northern Mining and NSW Energy District Branch, 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 Origin Energy Eraring, 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.

Based on the terms of the agreement reached between the parties, I am satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days. Pursuant to s.443(5) of the Act, the period of written notice for the purposes of s414(2)(b) of the Act is 5 working days for all industrial action specified in the Order.

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 5 February 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 PR782664

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, in effect, 30 working days from the making of the Order which was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Mining and Energy Union (MEU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Origin Energy Eraring Services Pty Limited. The union sought to conduct a ballot for proposed protected industrial action. Origin Energy Eraring objected to the application as initially drafted, prompting a hearing scheduled for 20 December 2024. However, on 19 December 2024, the MEU informed the Commission that it had reached an agreement with Origin Energy Eraring on the terms of an amended order, leading to the vacating of the hearing. The matter was subsequently decided based on the submitted documentation.

The legal issues before the Commission involved determining whether the requirements of section 443 of the Fair Work Act had been satisfied for the ballot to proceed. Specifically, the Commission had to assess if the union had genuinely attempted to reach an agreement with the employer, if the notification period was appropriate, and if the extended notice period was justified. The union's declaration, detailing the bargaining process and efforts to reach an agreement, was pivotal in this determination.

The Deputy President, Wright, found that the union had indeed been genuinely attempting to reach an agreement with Origin Energy Eraring, fulfilling the prerequisites of section 443(1). Given the agreement reached between the parties, the extended notice period of 5 working days was deemed appropriate, longer than the standard 3 working days. The Australian Electoral Commission was assigned to conduct the ballot, with voting to close on 5 February 2025. Additionally, a compulsory conciliation conference was scheduled, to be overseen by another member of the Commission, to facilitate further negotiations between the parties.

An Order was issued under PR782664, and the matter was assigned to another Commission member to manage the compulsory conciliation conference, with further directions expected to ensure effective negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established