Construction, Forestry, Maritime, Mining and Energy Union v Curragh Queensland Mining Pty Ltd

[2023] FWC 945

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Curragh Queensland Mining Pty Ltd

(B2023/356)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 APRIL 2023

Proposed protected action ballot of employees of Curragh Queensland Mining Pty Ltd

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union - Mining and Energy Division (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 Curragh Queensland Mining Pty Ltd (Respondent).

On 19 April 2023, the Fair Work Commission was advised that the Respondent did not oppose 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 Jeffrey Scales of the Applicant declared on 18 April 2023, 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 PR761269.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application made by the Construction, Forestry, Maritime, Mining and Energy Union – Mining and Energy Division, seeking a protected action ballot order in relation to certain employees of Curragh Queensland Mining Pty Ltd. The applicant sought to conduct a ballot to determine whether the employees would take protected action due to an inability to reach an agreement with the employer. The employer did not oppose the application. The Vice President of the Fair Work Commission, Catanzariti, determined the matter on the papers without the need for a hearing.

The legal issues before the court were whether the union had genuinely tried to reach an agreement with the employer and whether the notification time for the proposed agreement had been met. The court had to consider the statutory declaration of Jeffrey Scales of the Applicant, which set out the steps taken by the union in bargaining with the employer and confirmed that the union had been, and was, genuinely trying to reach an agreement. Additionally, the court had to determine if the requirements in s.443(1) of the Fair Work Act 2009 had been met.

The Vice President found that the union had genuinely tried to reach an agreement with the employer and that the notification time for the proposed agreement had been met. The court was satisfied with the evidence provided in the statutory declaration and the steps taken by the union in bargaining with the employer. Consequently, the application for a protected action ballot order was granted. The Vice President issued an Order in PR761269, allowing the union to proceed with the ballot as requested.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established