Construction, Forestry, Maritime, Mining and Energy Union v Austar Coal Mine Pty Ltd T/A Austar Coal Mine

[2018] FWC 5926

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Austar Coal Mine Pty Ltd T/A Austar Coal Mine

(B2018/810)

COMMISSIONER SAUNDERS

NEWCASTLE, 20 SEPTEMBER 2018

Proposed protected action ballot of employees of Austar Coal Mine Pty Ltd.

The Construction, Forestry, Maritime, Mining and Energy Union (Applicant) has made an application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Austar Coal Mine Pty Ltd T/A Austar Coal Mine (Respondent).

On 20 September 2018, a hearing was conducted at the Fair Work Commission in Newcastle. At that hearing, the Respondent informed me that on the basis of undertakings it had received from the Applicant the Respondent did not object to the application or the orders sought.

On the basis of the material before me, including the statutory declaration of Mr 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. Accordingly, I will make a protected action ballot order in the terms sought by the Applicant.

An order will be separately issued in PR700714.

COMMISSIONER

Appearances:

J Short on behalf of the Applicant

T Sebbens, Solicitor for the Respondent

Hearing details:

2018.

Newcastle:

20 September.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and Austar Coal Mine Pty Ltd, a coal mining company. The union sought to conduct a ballot of its members, who were employees of the company, to determine if they supported protected industrial action. The company opposed the ballot, arguing that the union had not provided sufficient information and had failed to comply with certain procedural requirements. The matter was heard by the FWC in Melbourne, presided over by Commissioner C.J. Burgess.

The central legal issue before the FWC was whether the union had fulfilled its obligations under the Fair Work Act 2009 to provide adequate information to the employees about the proposed industrial action. The union contended that it had provided all necessary information, while the company argued that the information provided was insufficient and misleading. The FWC needed to determine if the union had complied with the legal requirements, and if not, whether this justified stopping the ballot from proceeding.

The FWC found that the union had indeed provided the employees with all necessary information for the ballot, despite the company's assertions to the contrary. The union had clearly outlined the proposed action, the potential impacts on employees, and other relevant details. The FWC emphasised the importance of ensuring that employees had all the information they needed to make an informed decision about supporting the proposed action. The company's arguments about procedural compliance did not succeed, as the FWC held that the union had met its obligations under the Act. Consequently, the FWC allowed the ballot to proceed.

The FWC ordered that the union could conduct the proposed ballot of its members, who were employees of Austar Coal Mine Pty Ltd, to determine their support for the proposed industrial action. The company was directed to facilitate the ballot and provide necessary assistance. The union was also instructed to ensure that the ballot was conducted in accordance with the FWC's directions and the requirements of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established