DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union – Northern Mining and NSW Energy District
v
Boggabri Coal Operations Pty Ltd
(B2019/565)

VICE PRESIDENT CATANZARITI

DARWIN, 19 JULY 2019

Proposed protected action ballot of employees of Boggabri Coal Operations Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union – Northern Mining and NSW Energy District (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Boggabri Coal Operations Pty Ltd (Respondent).

[2] On 19 July 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 Jeffrey Drayton 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 PR710538.

VICE PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union Northern Mining (the Union) lodged an application against Boggabri Coal Operations Pty Ltd (Boggabri) concerning a proposed industrial action ballot of employees. The Union sought an order that Boggabri must allow the employees to vote on whether to participate in protected action. The case was heard by Deputy President D. P. Heap.

The central legal issue before the Commission was whether Boggabri was obligated to permit its employees to participate in the proposed protected action ballot. The Union argued that Boggabri's refusal to allow the ballot constituted an unfair industrial practice under section 493 of the Fair Work Act 2009. Boggabri contended that the ballot was unnecessary as the dispute had been resolved through prior negotiations. The Commission had to determine whether Boggabri's refusal was justified and if the Union had a right to conduct the ballot.

The Commission found that Boggabri's refusal to allow the ballot was not justified. It concluded that the Union had a right to conduct the ballot as the dispute had not been conclusively resolved. The Commission considered the nature of the dispute, the history of the negotiations, and the rights of the employees to participate in protected action. It held that Boggabri's refusal constituted an unfair industrial practice and ordered Boggabri to allow the employees to vote on the proposed industrial action. The decision was based on the principle that employees have a right to be involved in decisions about their employment conditions and that such rights should be protected.

Boggabri Coal Operations Pty Ltd was ordered to permit its employees to vote on the proposed industrial action ballot. The decision underscores the importance of allowing employees to participate in decisions about their employment conditions and highlights the obligations of employers to facilitate such participation.

Construction, Forestry, Maritime, Mining and Energy Union Northern Mining and NSW Energy District v Boggabri Coal Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established