The Australian Workers' Union v Department of Energy Environment and Climate Action Summary

[2025] FWC 622

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Workers' Union
v

Department of Energy Environment and Climate Action

(B2025/312)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 3 MARCH 2025

Proposed protected action ballot of employees of the Department of Energy Environment and Climate Action

This is an application by the Australian Workers’ Union (AWU 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 the Department of Energy Environment and Climate Action (DEECA or Employer).

On 28 February 2025, the Commission was advised that the Employer did not seek to be heard in relation to the matter.

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 Ross Kenna, Branch President, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with DEECA, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 18 March 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I observe that the draft order provided by the AWU contained an Appendix A that was clearly designed to provide clarity about the intended scope of industrial action under ballot question 19. I consider that the information should be provided to the relevant employees as part of the ballot questions. Accordingly, I have added the terms of the proposed Appendix to clause 5 of the Order issued by the Commission.

An Order has been separately issued in PR784882.

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, 10 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 Australian Workers' Union sought an order from the Fair Work Commission for a ballot of its members employed by the Department of Energy Environment and Climate Action. This application was brought under section 437 of the Fair Work Act 2009 and related to a proposed protected action ballot for the employees. The Department did not contest the application and the matter was decided on the written submissions without a hearing.

The central legal issue was whether the conditions under section 443 of the Fair Work Act for ordering a ballot were met. The conditions include the existence of a notification time for a proposed agreement, genuine efforts to reach agreement, and approval of the ballot agent. The Commission found that the union had met all these conditions. The union provided a declaration from its branch president which detailed the bargaining process and confirmed the requirement for the ballot.

The Deputy President was satisfied that the union had genuinely attempted to reach an agreement with the employer and that the necessary notification period had elapsed. The union's proposed ballot agent, Fair Vote Services Pty Ltd, was approved under the Act. The closing date for the ballot was set at 18 March 2025, which was ten working days from the date of the order, in line with the union's request. The Commission added specific terms to the ballot question to ensure clarity, as per the union's draft order.

The final orders included the authorisation of the ballot, the appointment of a date for the ballot to close, and the inclusion of specific terms in the ballot question. The matter will be referred to another member for a compulsory conciliation conference to continue negotiations.

The Australian Workers' Union v Department of Energy Environment and Climate Action

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established