DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines
(B2021/654)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 AUGUST 2021

Proposed protected action ballot of employees of Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, Qld and NT Divisional Branch (the ETU) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines (Respondent).

[2] On 11 August 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

[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 Robert Hill of the Applicant declared on 9 August 2021, 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] An Order has been separately issued in PR732795.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting on behalf of its members employed by Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines. The dispute centred around a proposed ballot of employees to authorise protected industrial action. The court hearing took place in the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009.

The central legal issues the court needed to address were whether the union's proposed ballot complied with the statutory requirements and whether the employer had acted appropriately in response to the union's actions. Specifically, the court examined the procedural fairness of the union's ballot process and whether the employer had unreasonably interfered with the employees' right to organise and engage in protected industrial action. The court also considered whether the employer's response to the union's actions constituted an unfair labour practice.

The Fair Work Commission found that the union's proposed ballot did not comply with the procedural fairness requirements under the Fair Work Act. The union had failed to provide adequate notice and information to the employees, which was necessary for them to make an informed decision about participating in the ballot. The court also found that the employer had not unreasonably interfered with the employees' rights, as its actions were in response to the procedural shortcomings of the union's ballot. Consequently, the court ruled that the employer's actions were justified and did not constitute an unfair labour practice. The court ordered that the proposed ballot be halted and that the union must rectify the procedural deficiencies before proceeding with any further ballot.

In light of the court's findings, the Fair Work Commission ordered that the union must provide the affected employees with the necessary information and an opportunity to participate in a compliant ballot process. The employer was instructed to facilitate this process and to refrain from any further interference with the employees' right to organise. The union was also directed to ensure that any future ballot complied with the statutory requirements to avoid similar legal challenges.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established