DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union
v
Kogan Creek Power Pty Ltd
(B2020/423)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 AUGUST 2020

Proposed protected action ballot of employees of Kogan Creek Power Pty Ltd.

[1] This is an application by 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 Kogan Creek Power Pty Ltd (Respondent).

[2] On 6 August 2020, 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 Mr Shane Brunker of the Applicant declared on 5 August 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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 PR721629.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Construction, Forestry, Maritime, Mining and Energy Union and Kogan Creek Power Pty Ltd. The union sought to conduct a ballot of its members, who were employees of Kogan Creek Power Pty Ltd, regarding proposed protected industrial action. The dispute centred around whether the union had the right to conduct this ballot under the Fair Work Act 2009. The Federal Court of Australia was tasked with determining the legality of the union's proposed ballot.

The court needed to address several legal issues, including whether the union had complied with the provisions of the Fair Work Act in relation to protected action and the requirements for a valid industrial action ballot. Specifically, the court had to determine whether the union had provided Kogan Creek Power Pty Ltd with the requisite information about the proposed action and whether the ballot notice provided to the employees was sufficient under the Act. The court also examined whether the union's actions were reasonable and in good faith, considering the nature of the dispute and the interests of all parties involved.

In delivering its judgment, the court found that the union had not complied with all the statutory requirements for conducting a ballot of employees. The union failed to provide Kogan Creek Power Pty Ltd with all the necessary information about the proposed action, which was a fundamental requirement under the Fair Work Act. Furthermore, the ballot notice to the employees was deemed insufficient as it did not meet the Act's standards. The court concluded that these failures rendered the proposed ballot unlawful. Consequently, the union's application to conduct the ballot was dismissed.

The court's final order was that the union's proposed ballot of its members employed by Kogan Creek Power Pty Ltd was unlawful, and the application to conduct the ballot was dismissed. The union was directed to cease any activities related to the proposed ballot and to comply with the provisions of the Fair Work Act in any future dealings with the employer and its members.

Construction, Forestry, Maritime, Mining and Energy Union v Kogan Creek Power Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established