Mining and Energy Union v Rix's Creek Pty Limited

[2025] FWC 2309

[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.

1. 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.

1. 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).

1. 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.

1. 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.

1. 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.

1. 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.

1. 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. 

1. An Order has been separately issued in PR790478.

DEPUTY PRESIDENT

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<PR790477>