CTHFWC

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BHP Coal Pty Ltd [2022] FWC 2620

[2022] FWC 2620

Fair Work Commission|2022-09-28

At a glance

AI case summary

Result

appellant. The application for a Protected Action Ballot Order was granted. An Order and Directions to the ballot agent were separately issued in PR746307 and PR746308 respectively.

Key principles

The Fair Work Commission may determine an application for a Protected Action Ballot Order under s.437 of the Fair Work Act 2009 on the papers without holding a hearing where the...
For the purposes of s.443(1) of the Fair Work Act 2009, the Commission may be satisfied that there is a notification time in relation to a proposed agreement and that the...
For the purposes of s.444(1)(b) of the Fair Work Act 2009, the Commission may be satisfied that a person other than the Australian Electoral Commission is a fit and proper person...

Issues before the court

Whether the Fair Work Commission may determine an application for a Protected Action Ballot Order on the papers without holding a hearing
Whether the requirements of s.443(1) of the Fair Work Act 2009 have been satisfied
Whether the requirements of s.444(1)(b) of the Fair Work Act 2009 have been satisfied regarding the appointment of a protected action ballot agent...

Plain English Summary

The Fair Work Commission granted a union's application for a protected action ballot order, which allows employees to vote on whether to take industrial action during bargaining for a new workplace agreement. The Commission decided the case based on written documents without holding a hearing because the employer (BHP Coal) did not want to participate further after negotiating some changes to the application. The Commission was satisfied that the union had genuinely tried to reach agreement with the employer and that the proposed ballot agent (IRIQ Law Pty Ltd) was suitable to run the vote.

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Communications, Electrical, Electronic, Energy, Information, Postal,... [2022] FWC 2620 | Case summary | Zoe

Judgment (15 paragraphs)

[1]

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v BHP Coal Pty Ltd [2022] FWC 2620 (28 September 2022)

[2]

[2022] FWC 2620

[3]

Fair Work Act 2009

[4]

s.437 - Protected action

[5]

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

[6]

Proposed protected action ballot by employees of BHP Coal Pty Ltd

[7]

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU) (Applicant) has made an application to the Fair Work Commission (the Commission) under s.437 of the Fair Work Act 2009 (Cth) (the Act) for a Protected Action Ballot Order (the Order) in relation to a group of employees of BHP Coal Pty Ltd (Respondent).

[8]

[2] Discussions were held between the parties with respect to the terms of the Order and Directions sought by the Applicant. Several amendments to the Order and Directions were proposed by the Respondent. The Applicant advised the Commission on 27 September 2022 that the Applicant had accepted the proposed amendments and the terms of the draft Order and Directions sought in the application were amended accordingly. The Respondent has confirmed that it does not consent to the Order sought, nor does it wish to be heard further in relation to the matter.

[9]

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[10]

[4] On the basis of the material before me, including the statutory declaration of Craig Thomas for the Applicant declared on 19 September 2022, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[11]

[5] The Applicant has specified in the application for a protected action ballot order that it wishes a person other than the Australian Electoral Commission to be the protected action ballot agent and has specified IRIQ Law Pty Ltd for this purpose. A statutory declaration has been made by Mr Faiyaz Devjee, the Principal of IRIQ Law Pty Ltd, the individual who will carry out the functions of the protected action ballot agent.

[12]

[6] Based on the statutory declaration made by Mr Devjee, I am satisfied as required by s. 444(1)(b)(i) that Mr Devjee is a fit and proper person to conduct the ballot. I am also satisfied, based on the statutory declaration, that as provided in s. 444(1)(b)(ii) of the Act, the requirements in Regulation 3.11 of the Fair Work Regulations 2009 have been met.

[13]

[7] An Order and Directions to the ballot agent have been separately issued in PR746307 and PR746308 respectively.

[14]

Seal of the Fair Work Commission with Member Signature

[15]

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