DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union – Northern Mining and NSW Energy District
v
Centennial Northern Coal Services Pty Limited
(B2019/1264)

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 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 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 Jeremy McWilliams 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 PR713982.

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 and NSW Energy District brought an application against Centennial Northern Coal Services Pty Limited, seeking authorisation for a proposed protected action ballot of the employees. The application was brought under section 318 of the Fair Work Act 2009, which allows a union to apply for authorisation to take protected action if it believes that there is an industrial dispute and that the protected action is appropriate. The Commission held that the proposed protected action ballot was appropriate, and that there was an industrial dispute between the parties.

The primary legal issue before the Commission was whether the proposed protected action ballot was appropriate in the circumstances. The Commission considered the relevant provisions of the Fair Work Act and the case law on the issue of appropriateness. The Commission found that the proposed protected action ballot was appropriate, as it was a reasonable means of achieving the union's objectives and was not excessive or oppressive. The Commission also found that there was an industrial dispute between the parties, as the union and the employer had differing views on the terms and conditions of employment.

The Commission's reasoning was based on a detailed analysis of the evidence and arguments presented by both parties. The Commission found that the union had a genuine interest in protecting the rights and interests of its members, and that the proposed protected action ballot was a reasonable means of achieving this. The Commission also found that the employer had not demonstrated that the proposed protected action ballot was excessive or oppressive, or that it would cause undue hardship. The Commission concluded that the proposed protected action ballot was appropriate, and that there was an industrial dispute between the parties.

The Fair Work Commission authorised the proposed protected action ballot of the employees of Centennial Northern Coal Services Pty Limited. The Commission ordered that the ballot be conducted in accordance with the provisions of the Fair Work Act and the regulations. The Commission also ordered that the employer take all necessary steps to facilitate the conduct of the ballot, including providing the union with access to the workplace and employees. The Commission emphasised the importance of protecting the rights and interests of employees, and of ensuring that any industrial action taken is lawful and reasonable.

Construction, Forestry, Maritime, Mining and Energy Union - Northern Mining and NSW Energy District 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