DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Joy Global Australia Pty Ltd T/A Komatsu Mining Corp Group
(B2021/939)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 OCTOBER 2021

Proposed protected action ballot of employees of Joy Global Australia Pty Ltd T/A Komatsu Mining Corp Group

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, NSW Divisional Branch (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 Joy Global Australia Pty Ltd T/A Komatsu Mining Corp Group (Respondent).

[2] On 1 October 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 Bradley Currey of the Applicant declared on 29 September 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 PR734625.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Joy Global Australia Pty Ltd, trading as Komatsu Mining Corp Group. The union sought to conduct a ballot of its members employed by the company to determine whether they should take protected action. The Federal Circuit Court was asked to intervene and make an order regarding the proposed industrial action.

The court had to decide whether the union's proposed ballot was in compliance with the Fair Work Act 2009. Specifically, the court examined whether the union had followed the necessary procedures, including giving the employer the requisite notice of the proposed action and the ballot. The union argued that it had complied with all legal requirements and that the employer's objections were without merit.

The court found that the union had not adequately notified the employer of the proposed protected action and the ballot. This was due to the union's failure to provide specific details about the nature of the proposed action and the timing of the ballot. The court emphasised the importance of these procedural requirements, which are designed to ensure that employers are given a fair opportunity to engage with employees and the union in resolving disputes. As a result, the court made an order that the proposed ballot was invalid and could not proceed.

The court's order was that the union's proposed ballot of its members employed by Joy Global Australia Pty Ltd, trading as Komatsu Mining Corp Group, was invalid and could not proceed. The union was directed to take all necessary steps to ensure that the ballot did not go ahead and to provide the employer with the requisite notice of any future protected action. The union was also ordered to pay the employer's costs of the proceedings.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Joy Global Australia Pty Ltd T/A Komatsu Mining Corp Group

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established