Mining and Energy Union v Ulan Coal Mines Pty Limited Summary

[2025] FWC 1128

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Ulan Coal Mines Pty Limited

(B2025/653)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 APRIL 2025

Proposed protected action ballot of employees of Ulan Coal Mines 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 Ulan Coal Mines Pty Limited (Ulan Coal or Employer).

On 23 April 2025, the Commission was advised that the Employer, in effect, did not object to the Application.

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 Craig Carberry, 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 Ulan Coal, 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 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 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 PR786354.

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 30 working 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 Fair Work Commission (FWC) was presented with an application by the Mining and Energy Union (MEU) for a protected action ballot order concerning certain employees of Ulan Coal Mines Pty Limited (Ulan Coal). The application was made under section 437 of the Fair Work Act 2009. The matter was brought before Deputy President Hampton in Adelaide on 23 April 2025. Ulan Coal did not object to the application, leading the Commission to decide on the matter without a formal hearing. The application sought a ballot to ascertain employee support for proposed protected actions, as part of ongoing negotiations between the MEU and Ulan Coal.

The legal issues at the heart of this case included whether the MEU had genuinely attempted to reach an agreement with Ulan Coal, and if the requirements for a protected action ballot as outlined in section 443 of the Act were satisfied. The MEU needed to demonstrate that it had been genuinely trying to negotiate in good faith and that the proposed agreement was subject to a notification period. Additionally, the Commission had to determine an appropriate closing date for the ballot, ensuring it aligned with the statutory requirements and practical considerations for the Australian Electoral Commission (AEC) to conduct the ballot.

Deputy President Hampton reviewed the submitted materials, including a declaration by Craig Carberry, a Union Official, which outlined the steps taken by the MEU in bargaining with Ulan Coal. The evidence confirmed that the MEU had been genuinely trying to reach an agreement and that all statutory requirements had been met. Consequently, the Commission granted the application, setting the closing date for voting in the ballot as 5 June 2025. This date also set the ballot period for any subsequent compulsory conciliation conference under section 448A of the Act. The matter was subsequently assigned to another member of the Commission for the conciliation conference.

The final orders issued mandated that the AEC would conduct the ballot and that all bargaining representatives must attend the compulsory conciliation conference, prepared to engage in meaningful negotiations. This decision underscores the importance of genuine bargaining efforts and adherence to statutory timelines in protected action ballots.

Mining and Energy Union v Ulan Coal Mines Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established