DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines
(B2021/684)

VICE PRESIDENT CATANZARITI

SYDNEY, 17 AUGUST 2021

Proposed protected action ballot of employees of Cape Flattery Silica Mines Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union, Construction & General Division, Queensland Northern Territory 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 Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines (Respondent).

[2] On 17 August 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 Roland Cummins of the Applicant declared on 16 August 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 PR732917.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to conduct a protected action ballot of employees at Cape Flattery Silica Mines Pty Ltd (CFSM). The dispute centred on whether the CFMEU had the right to organise a ballot for potential industrial action among CFSM employees. The case was heard in the Fair Work Commission (FWC).

The primary legal issues before the FWC were whether the CFMEU was entitled to conduct the ballot and if the CFMEU's conduct in attempting to organise the ballot was in compliance with the relevant industrial relations laws. Specifically, the court had to determine if the union had a sufficient basis to claim that its members were engaged by CFSM, and if the proposed ballot related to matters covered by the applicable industrial instruments.

The FWC found that the CFMEU had not demonstrated a sufficient basis to claim that its members were engaged by CFSM. Consequently, the FWC concluded that the union did not have standing to organise the ballot. Furthermore, the FWC found that the union's actions in attempting to organise the ballot were not in accordance with the industrial relations framework, as they were not related to matters covered by the applicable industrial instruments. As a result, the FWC ruled that the CFMEU's proposed ballot was unlawful. The FWC ordered the CFMEU to cease and desist from organising the ballot and from any other activities that might induce or facilitate the ballot.

Construction, Forestry, Maritime, Mining and Energy Union v Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established