Construction, Forestry, Maritime, Mining and Energy Union v Anglo Coal (Moranbah North Management) Pty Ltd

[2023] FWC 2777

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v

Anglo Coal (Moranbah North Management) Pty Ltd

(B2023/1148)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 24 OCTOBER 2023

Proposed protected action ballot of employees of Anglo Coal (Moranbah North Management) Pty Ltd

This is an application by the Construction, Forestry, maritime and Energy Union (CFMMEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Anglo Coal (Moranbah North Management) Pty Ltd (Anglo Coal or Employer).

On 24 October 2023, the Commission was advised that Anglo Coal did not, in effect, object to the Application as amended[1].

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 declaration of Steven Smyth, General Vice President, setting out the steps taken by the CFMMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Anglo Coal, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 6 November 2023.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR767540.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] An amended proposed Order was provided on 24 October and no objection was raised by the Respondent.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[3] This is in effect 10 working days form the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Anglo Coal (Moranbah North Management) Pty Ltd. The CFMMEU sought the order to proceed with a ballot in an attempt to reach an agreement with Anglo Coal. The application was made without opposition from Anglo Coal, leading the Deputy President to decide on the matter without a hearing.

The legal issues before the court involved verifying that the notification time for the proposed agreement had been met and that the CFMMEU had genuinely tried to reach an agreement with Anglo Coal. The court needed to ensure that all requirements under section 443(1) of the Act were satisfied, particularly the steps taken by the CFMMEU in bargaining with the employer. Additionally, the court had to confirm that the ballot agent, Democratic Outcomes Pty Ltd T/A CiVS, was approved under section 468A of the Act and was authorized to conduct the ballot.

The Deputy President concluded that the CFMMEU had met all necessary requirements for the protected action ballot. The Commission determined that voting would close on 6 November 2023, effectively establishing the ballot period. An Order was issued, and the matter was assigned to another Member of the Commission for a compulsory conciliation conference under section 448A of the Act. Directions were likely to be issued to ensure that the parties were prepared for meaningful negotiations.

The final orders included the approval of the ballot order, the closure of voting on 6 November 2023, and the scheduling of a compulsory conciliation conference. The decision underscores the Commission's role in facilitating fair work agreements and ensuring that the processes for protected action ballots are correctly followed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established