Association of Professional Engineers, Scientists and Managers, Australia, the Managers and Professionals Division v Illawarra Coal Holdings Pty Limited T/A Appin Mine

[2023] FWC 1240

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Association of Professional Engineers, Scientists and Managers, Australia, The - Managers and Professionals Division
v

Illawarra Coal Holdings Pty Limited T/A Appin Mine

(B2023/494)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 MAY 2023

Proposed protected action ballot of employees of Illawarra Coal Holdings Pty Limited

This is an application by the Association of Professional Engineers, Scientists and Managers, Australia - Managers and Professionals Division (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Illawarra Coal Holdings Pty Limited T/A Appin Mine (Respondent).

On 26 May 2023, my Associate was advised that the Respondent 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 Ms Giblin of the Applicant 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.

An order has been separately issued in PR762538.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Association of Professional Engineers, Scientists and Managers, Australia - Managers and Professionals Division (Applicant) under Section 437 of the Fair Work Act 2009, seeking an order for a protected action ballot among certain employees of Illawarra Coal Holdings Pty Limited T/A Appin Mine (Respondent). The Applicant aimed to conduct a ballot to authorise potential protected actions, which typically include strikes or other industrial actions, in pursuit of better working conditions or remuneration. The Respondent did not object to the application, leading to the decision to proceed with the matter on the provided documents without a hearing.

The legal issues before the Court involved determining whether the Applicant had met the necessary requirements to conduct a protected action ballot. This included verifying if there was a notification period for the proposed agreement and ensuring that the statutory conditions set out in Section 443(1) of the Act were satisfied. The Applicant needed to demonstrate that it had been genuinely attempting to reach an agreement with the Respondent during the bargaining process.

The Deputy President reviewed the material, including the declaration from Ms. Giblin of the Applicant, which outlined the steps taken during the bargaining process and confirmed the Applicant's genuine efforts to reach an agreement with the Respondent. The evidence provided was sufficient to satisfy the Deputy President that the notification period was in effect and that all statutory requirements were met. Consequently, the application was approved, allowing the Applicant to proceed with the ballot as intended.

An order was issued in PR762538, granting the Applicant the authority to conduct the protected action ballot among the employees of Illawarra Coal Holdings Pty Limited. This decision reflects the Commission's role in facilitating fair industrial relations processes and ensuring that both employers and employees can seek resolutions through lawful means when negotiations reach an impasse.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established