Construction, Forestry, Maritime, Mining and Energy Union v Clarence Coal Pty Limited

[2022] FWC 3213

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Clarence Coal Pty Limited

(B2022/1787)

VICE PRESIDENT CATANZARITI

MELBOURNE, 6 DECEMBER 2022

Proposed protected action ballot of employees of Clarence Coal Pty Limited

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (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 Clarence Coal Pty Limited (Respondent).

The Respondent neither opposed nor consented to the application.

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 statutory declaration of Graeme Osborne of the Applicant declared on 1 December 2022, 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.

An Order has been separately issued in PR748625.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to employees of Clarence Coal Pty Limited. The company neither opposed nor consented to the application. The Vice President of the Fair Work Commission, Catanzariti, decided to determine the matter on the papers without holding a hearing. The union had provided a statutory declaration by Graeme Osborne, outlining the steps taken in bargaining with the company and its genuine efforts to reach an agreement. The Vice President was satisfied that there was a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act had been met.

The legal issue before the Fair Work Commission was whether the union had met the requirements to hold a protected action ballot. The union needed to demonstrate that it had genuinely tried to reach an agreement with the company and that there was a notification time in relation to the proposed agreement. The Vice President considered the statutory declaration provided by the union and was satisfied that the union had met the requirements under the Fair Work Act.

The Vice President found that the union had provided sufficient evidence to demonstrate that it had genuinely tried to reach an agreement with the company and that there was a notification time in relation to the proposed agreement. The Vice President was satisfied that the requirements under section 443(1) of the Fair Work Act had been met. Therefore, the application for a protected action ballot order was granted.

The Fair Work Commission issued an order in PR748625, granting the union's application for a protected action ballot order. The company was not opposed to the application, and the Vice President determined the matter on the papers without holding a hearing. The union had provided sufficient evidence to demonstrate that it had genuinely tried to reach an agreement with the company and that there was a notification time in relation to the proposed agreement. The requirements under section 443(1) of the Fair Work Act had been met.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established