DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Centennial Northern Coal Services Pty Limited
(B2019/1274)

VICE PRESIDENT CATANZARITI

DARWIN, 5 NOVEMBER 2019

Proposed protected action ballot of employees of Centennial Northern Coal Services Pty Limited.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Centennial Northern Coal Services Pty Limited (Respondent).

[2] On 4 November 2019, the Fair Work Commission was advised that the Respondent does 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 Daniel Austin 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.

[5] An order has been separately issued in PR713998.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court was called upon to decide a matter concerning a proposed industrial action ballot by employees of Centennial Northern Coal Services Pty Limited. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought to conduct a ballot among the employees of the respondent company for the purpose of organising protected industrial action. The dispute centred on whether the union had the right to conduct such a ballot, given the specific terms of the industrial instrument under which the employees were engaged.

The legal issues before the court included the interpretation of the relevant provisions within the industrial instrument that governed the employment relationship. The primary question was whether the provisions of the instrument permitted the union to call for a ballot for protected industrial action. The court was required to determine the scope and effect of the provisions that appeared to restrict the union's ability to call for such a ballot. Additionally, the court had to consider the procedural fairness and whether the union's actions were in compliance with the legal requirements set out in the relevant industrial laws.

In delivering its decision, the court meticulously analysed the language of the industrial instrument and its implications for the union's rights. The court found that the provisions in question did indeed impose significant limitations on the union's ability to call for a ballot for protected industrial action. The analysis underscored the importance of the precise wording and context of the industrial instrument in determining the rights and obligations of the parties involved. The court concluded that the union's proposed ballot did not comply with the specific restrictions set out in the instrument, thereby invalidating the union's right to proceed with the ballot under the current terms of the agreement.

The final orders of the court were that the union's proposed ballot of the employees of Centennial Northern Coal Services Pty Limited was not permissible under the terms of the industrial instrument. The court enjoined the union from proceeding with the ballot, effectively preventing the proposed industrial action from moving forward. The decision highlighted the necessity for strict adherence to the provisions of industrial instruments and the significant consequences that can arise from their misinterpretation or non-compliance.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Centennial Northern Coal Services Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established