Mining and Energy Union v Ulan West Operations Pty Limited Summary

[2024] FWC 2353

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Mining and Energy Union
v

Ulan West Operations Pty Limited

(B2024/1114)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 3 SEPTEMBER 2024

Proposed protected action ballot of employees of Ulan West Operations 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 West Operations Pty Limited (Ulan or Employer).

On 2 September 2024, 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 Robert Timbs, 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, 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.

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 16 October 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR778856.

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 Mining and Energy Union (MEU) applied to the Fair Work Commission for a protected action ballot order concerning employees of Ulan West Operations Pty Limited (Ulan). The application was made under section 437 of the Fair Work Act 2009. Ulan did not object to the application, and the Commission decided to determine the matter based on the submitted documents without a hearing. The MEU sought the ballot to proceed with protected industrial action due to ongoing difficulties in reaching an agreement with Ulan.

The legal issues the court needed to address were whether the MEU had followed the necessary steps for a protected action ballot, and whether all requirements under section 443(1) of the Fair Work Act were fulfilled. The court examined the declaration from a union official, Robert Timbs, which detailed the bargaining efforts with Ulan and affirmed the union's genuine attempt to reach an agreement. The court also needed to determine the appropriate closing date for the ballot, which was set at 16 October 2024.

The Deputy President of the Commission, Hampton, concluded that the MEU had met all the requirements for a ballot. The court determined that a notification period existed for the proposed agreement and that the union had genuinely attempted to negotiate. Consequently, the Commission granted the ballot order, specifying the Australian Electoral Commission to conduct the ballot. Additionally, the court set the ballot closing date and assigned the matter for a compulsory conciliation conference, aiming to facilitate meaningful negotiations between the parties.

Mining and Energy Union v Ulan West Operations Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established