Construction, Forestry, Maritime, Mining and Energy Union v Illawarra Coal Holdings Pty Ltd

[2022] FWC 1048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Illawarra Coal Holdings Pty Ltd

(B2022/366)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 MAY 2022

Proposed protected action ballot of employees of Illawarra Coal Holdings Pty Ltd

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 Illawarra Coal Holdings Pty Ltd (Respondent).

On 4 May 2022, 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 Robert Timbs of the Applicant declared on 27 April 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 PR741280.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Construction, Forestry, Maritime, Mining and Energy Union (the Union) under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Illawarra Coal Holdings Pty Ltd (the Employer). The Union sought to hold a ballot to determine if the employees wished to take protected industrial action in relation to an enterprise agreement. The Employer did not oppose the application.

The legal issues the Commission had to decide were whether the Union had genuinely attempted to negotiate in good faith with the Employer and if the statutory notification period for the ballot had been met. The Union submitted that it had taken steps to reach an agreement with the Employer and that it had been genuinely trying to negotiate in good faith. The Union also argued that the notification period had been satisfied. The Employer did not oppose the application, which meant that the Union's claims were effectively admitted.

The Commission found that the Union had genuinely attempted to negotiate with the Employer in good faith and that the notification period for the ballot had been met. The Commission was satisfied that the requirements of section 443(1) of the Fair Work Act had been fulfilled. The Union had provided a statutory declaration from Robert Timbs outlining the steps taken to negotiate with the Employer. The Employer did not oppose the application, which meant that the Union's claims were effectively admitted. The Commission therefore determined to grant the Union's application for a protected action ballot order.

The Commission issued an order for a protected action ballot to be held in accordance with the Fair Work Act. The order is separate from the decision and is identified as PR741280. This case demonstrates the process for seeking a protected action ballot under the Fair Work Act and the considerations the Commission takes into account in deciding such applications.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established