Mining and Energy Union v Ulan Surface Operations Pty Ltd Summary

[2025] FWC 1139

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Ulan Surface Operations Pty Ltd

(B2025/651)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 APRIL 2025

Proposed protected action ballot of employees of Ulan Surface Operations 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 Ulan Surface Operations Pty Ltd (Ulan Surface or Employer).

On 23 April 2025 the Commission was advised that the Employer, in effect, did not object to the Application if amended to reflect discussions between the parties. The amendments concerned proposed ballot questions.

In the circumstances, I have decided to amend the application to reflect the consent position reached and otherwise determined 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 Surface, 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 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 6 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 PR786373.

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 and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Mining and Energy Union (MEU) seeking a protected action ballot order under section 437 of the Fair Work Act 2009. The application was in relation to certain employees of Ulan Surface Operations Pty Ltd (Ulan Surface). The employer did not object to the application, provided that certain amendments were made to the ballot questions. The Deputy President Hampton accepted the consent position and determined the matter based on the written submissions.

The key legal issues before the court involved whether the MEU had genuinely attempted to reach an agreement with Ulan Surface, whether there was a notification period in relation to the proposed agreement, and whether all the requirements under section 443(1) of the Act had been satisfied. The court was also required to determine the closing date for the voting period and the ballot period.

After considering the evidence, the Deputy President Hampton found that the MEU had genuinely tried to reach an agreement with Ulan Surface. The court was satisfied that there was a notification period in relation to the proposed agreement and that all the requirements under section 443(1) of the Act had been met. The Deputy President Hampton also determined that the voting period would close on 6 June 2025, which was 30 working days from the date of the order. The court decided to conduct a compulsory conciliation conference under section 448A of the Act and assigned the matter to another Member of the Commission.

The court issued an order requiring the attendance of all bargaining representatives at the conference and directions to ensure that the parties were ready to conduct meaningful negotiations. The Mining and Energy Union was granted the protected action ballot order.

Mining and Energy Union v Ulan Surface Operations Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established