Mining and Energy Union v Rix's Creek Pty Limited

[2025] FWC 2309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Mining and Energy Union
v

Rix’s Creek Pty Limited

(B2025/1249)

DEPUTY PRESIDENT DEAN

CANBERRA, 8 AUGUST 2025

Proposed protected action ballot of employees of Rix’s Creek Pty Limited.

The Mining and Energy Union (MEU or Applicant) has made an application for a protected action ballot order (PABO) pursuant to s. 437 of the Fair Work Act 2009.

The application seeks to ballot employees of Rix’s Creek Pty Ltd (Respondent) who are members of, and represented by, the MEU for a proposed agreement to replace the Rix’s Creek Mine Enterprise Agreement 2021 (the Agreement).

The Respondent did not oppose the making of the PABO, however it sought to extend the period of written notice required for the taking of industrial action.

Section 443(5) of the Act provides that if there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) being longer than three working days, the protected action ballot order may specify a longer period of up to seven working days.

The application was listed for hearing on 7 August 2025. Mr K Endacott appeared for the MEU and Mr B Clements appeared for the Respondent.

The parties submitted that the appropriate notice period in the circumstances be 5 calendar days. Given the submissions that were filed, I consider it appropriate to exercise my discretion to grant an extension of the notice period. I am satisfied that an extension of the notice period from three working days to five calendar days (not including a public holiday) is appropriate in all the circumstances.

On the basis of the material before me, including the declaration of Michael Taggart, District Vice President, setting out the steps taken by the MEU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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.

An Order has been separately issued in PR790478.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Mining and Energy Union (MEU) applied for a protected action ballot order (PABO) under section 437 of the Fair Work Act 2009, seeking to ballot employees of Rix’s Creek Pty Ltd (Rix’s Creek), who are members of and represented by the MEU, for a proposed agreement to replace the existing Rix’s Creek Mine Enterprise Agreement 2021. The Respondent did not oppose the making of the PABO but sought to extend the period of written notice required for the taking of industrial action. The Respondent argued that, due to exceptional circumstances, the notice period should be extended beyond the statutory minimum of three working days, to a maximum of seven working days as permitted by section 443(5) of the Act.

The primary legal issue before the court was whether the period of written notice required for the taking of industrial action should be extended from three working days to five calendar days. The court considered whether there were exceptional circumstances justifying an extension of the notice period and whether all statutory requirements for the PABO had been met. The MEU argued that the additional time would facilitate effective communication with its members and ensure a fair and informed ballot process. The Respondent did not provide any evidence to contradict the MEU's submissions on the need for an extended notice period.

The Deputy President considered the submissions from both parties and determined that an extension of the notice period was warranted. The Deputy President was satisfied that the MEU had genuinely attempted to reach an agreement with Rix’s Creek and that there were exceptional circumstances justifying the extension of the notice period. The Deputy President concluded that a notice period of five calendar days (excluding public holidays) was appropriate and granted the PABO with the extended notice period. The Deputy President also noted that the MEU had met all statutory requirements for the PABO, including providing evidence of its good-faith bargaining efforts.

An Order was issued in PR790478, granting the PABO with the extended notice period of five calendar days. The decision affirmed the authority of the Fair Work Commission to extend the notice period in exceptional circumstances and upheld the importance of good-faith bargaining in the industrial relations process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established