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Fair Work Act 2009
s.437—Protected action
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries
Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
BHP Coal Pty Ltd
(B2022/1417)
DEPUTY PRESIDENT ASBURY BRISBANE, 28 SEPTEMBER 2022
Proposed protected action ballot by employees of BHP Coal Pty Ltd
[1] The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union”,
known as the Australian Manufacturing Workers’ Union (AMWU) (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).
[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 26 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.
[3] In the circumstances, I have decided to determine the matter on the papers without
holding a hearing.
[4] On the basis of the material before me, including the statutory declaration of Kegan
Scherf 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.
[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.
[2022] FWC 2617
DECISION
AUSTRALIA FairWork Commission
[2022] FWC 2617
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[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.
[7] An Order and Directions to the ballot agent have been separately issued in PR746300
and PR746301 respectively.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR746298
AL OF THE FAIR WORK COMMISSION THE
