Construction, Forestry, Maritime, Mining and Energy Union v Citic Pacific Mining Management Pty Ltd Summary

[2023] FWC 2770

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

CITIC Pacific Mining Management Pty Ltd

(B2023/1144)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 23 OCTOBER 2023

Proposed protected action ballot of employees of Citic Pacific Mining Management Pty Ltd

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to CITIC Pacific Mining Management Pty Ltd (CITIC Pacific or Employer).

I observe that there are related applications by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in B2023/1090, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) in B2023/1116 and The Australian Workers’ Union (AWU) in B2023/1140. All applications relate to the same proposed enterprise agreement.

On 23 October 2023, the Applicant filed an amended application, amending their response to the Respondent’s ABN Number. Accordingly, I grant leave for the Applicant to amend their application under s.586 of the Act. On that basis, the Respondent does not oppose the application as amended.

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 declarations of Greg Busson, District Secretary and Bradley Upton, Assistant State Secretary of the CFMMEU, 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 CITIC Pacific, 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[1] 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 9 November 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR767520.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with the related matters. To the extent that this involves additional bargaining representatives, 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] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This period is, in effect, 10 working days from the date on which the protected action ballot order is made.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made an application to the Fair Work Commission (FWC) for a protected action ballot order in relation to CITIC Pacific Mining Management Pty Ltd (CITIC Pacific). The CFMMEU sought to hold a ballot to determine whether employees would engage in protected action under the Fair Work Act 2009 (Act). The dispute involved the negotiation of an enterprise agreement, with the CFMMEU asserting that it had been genuinely attempting to reach an agreement with CITIC Pacific. The application was made under section 437 of the Act, which allows for the holding of a ballot if certain conditions are met, including the notification period and the requirements set out in section 443(1).

The legal issues before the FWC included whether the CFMMEU had genuinely been attempting to reach an agreement with CITIC Pacific and if all procedural requirements under the Act had been fulfilled. The FWC also needed to determine if the proposed ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), was eligible and authorised to conduct the ballot. The court assessed the declarations submitted by Greg Busson and Bradley Upton, both from the CFMMEU, which outlined the union's bargaining efforts with CITIC Pacific. The FWC concluded that the CFMMEU had met all the necessary requirements and that CiVS was an approved ballot agent.

The FWC determined that the CFMMEU had genuinely been attempting to reach an agreement and that all procedural requirements were satisfied. The Deputy President Hampton granted leave for the amended application and decided to determine the matter on the papers without holding a hearing. The FWC also set the closing date for the ballot as 9 November 2023, establishing the ballot period for the purpose of section 448A(2) of the Act. An order was separately issued to conduct the compulsory conciliation conference in conjunction with related matters. Another member of the Commission would oversee this conference, ensuring meaningful negotiations took place.

The final orders included granting the amended application, setting the ballot closing date, and issuing an order for the compulsory conciliation conference. This decision ensured that the ballot could proceed under the Act, with appropriate oversight to facilitate further negotiations between the CFMMEU and CITIC Pacific.

Construction, Forestry, Maritime, Mining and Energy Union v Citic Pacific Mining Management Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established