v SC Hydro Pty Ltd Summary

[2025] FWC 1157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

SC Hydro Pty Ltd

(B2025/667)

DEPUTY PRESIDENT SLEVIN

SYDNEY, 28 APRIL 2025

Proposed protected action ballot of employees of SC Hydro Pty Ltd

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) 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 SC Hydro Pty Ltd (SC Hydro or Employer) that are currently covered by the S C Hydro Pty Ltd -AWU Tunnel and Associated Works Greenfield Agreement 2021 - 2025.

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the Australian Workers’ Union (AWU) and the Construction, Forestry and Maritime Employees Union (CFMEU)[1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 28 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 Michael Murray, Organiser, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with SC Hydro, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 12 May 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR786448.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. 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] Respectively, B2025/662, B2025/663 and B2025/664.

[2] This is, in effect, 10 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of SC Hydro Pty Ltd. These employees were covered by the S C Hydro Pty Ltd - AWU Tunnel and Associated Works Greenfield Agreement 2021-2025. The AMWU sought to conduct a ballot to potentially authorise industrial action due to ongoing disputes in their negotiations with SC Hydro. Other unions, including the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, the Australian Workers’ Union, and the Construction, Forestry and Maritime Employees Union, had also applied for similar ballot orders regarding the same enterprise agreement. SC Hydro did not object to the AMWU's application, leading the Deputy President to decide the matter based on the submitted documentation without holding a hearing.

The legal issues before the Commission involved determining whether the AMWU had met the criteria set out in section 443(1) of the Act, which mandates that the union genuinely tries to reach an agreement with the employer and that a notification period exists for the proposed enterprise agreement. Furthermore, the Commission had to decide the closing date for the ballot, which was crucial for establishing the ballot period under section 448A(2) of the Act. The AMWU provided a declaration from Michael Murray, an Organiser, which outlined the union's efforts in bargaining and demonstrated their genuine attempt to reach an agreement. The Commission was also required to approve the ballot agent, Democratic Outcomes Pty Ltd, ensuring compliance with section 468A of the Act.

After reviewing the material before it, the Commission found that the AMWU had fulfilled all the necessary requirements. The Deputy President was satisfied that a notification period existed and that the union had genuinely tried to reach an agreement. Consequently, the Commission granted the AMWU's application for a protected action ballot order. The ballot was to be conducted by Democratic Outcomes Pty Ltd, who had been approved as an eligible ballot agent. The closing date for voting was set as 12 May 2025, which also established the ballot period under section 448A(2) of the Act. The matter was assigned to another Member of the Commission to conduct a compulsory conciliation conference alongside related matters, with an Order requiring the attendance of all bargaining representatives and likely issuing Directions to ensure meaningful negotiations.

This decision resulted in an order being issued separately in PR786448, and the matter was to be handled by another Commission member for further conciliation proceedings.

v SC Hydro Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established