Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Illawarra Coal Holdings Pty Ltd Summary

[2022] FWC 1268

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Illawarra Coal Holdings Pty Ltd

(B2022/472)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 MAY 2022

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

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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Illawarra Coal Holdings Pty Ltd (Respondent).

On 24 May 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Trent Healey of the Applicant declared on 19 May 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.

An Order has been separately issued in PR741907.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "Union") for an order allowing its members, who are employees of Illawarra Coal Holdings Pty Ltd (the "Employer"), to vote on whether to take protected action. The application was made under section 437 of the Fair Work Act 2009. The Union had notified the Employer of its intention to take protected action, and had provided the requisite information in its notification, including the reasons for the proposed action and a proposed timetable. The Union sought an order from the Commission allowing its members to vote on whether to take industrial action, such as a strike or a lockout. The Union argued that it had been genuinely trying to reach an agreement with the Employer, but had been unable to do so.

The Commission was required to consider whether the Union had met the requirements set out in section 437 of the Act, including whether there was a notification time in relation to the proposed agreement, and whether the Union had been genuinely trying to reach an agreement with the Employer. The Commission also needed to consider whether the proposed industrial action was protected action within the meaning of the Act. The Commission found that the Union had met the requirements set out in section 437 of the Act, and that the proposed industrial action was protected action. The Commission was satisfied that the Union had been genuinely trying to reach an agreement with the Employer, and that there was a notification time in relation to the proposed agreement. The Commission noted that the Employer had not opposed the application, and that the Union had provided all the necessary information in its notification.

In light of the above, the Commission decided to grant the Union's application for an order allowing its members to vote on whether to take protected action. The Commission issued an order under section 437 of the Act, allowing the Union's members to vote on whether to take industrial action. The order also set out the procedures for the ballot, including the period during which the ballot was to be held, and the manner in which it was to be conducted. The Commission noted that the order was separate from any order that might be made under section 438 of the Act, which deals with the consequences of a protected action ballot. The Commission made no orders under section 438 of the Act in this case.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Illawarra Coal Holdings Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established