Construction, Forestry, Maritime, Mining and Energy Union v Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

[2023] FWC 2192

[2023] FWC 2192

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

Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd

(B2023/901)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 31 AUGUST 2023

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

1. This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU or Union) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Kogan Creek Power Pty Ltd T/A CS Energy Pty Ltd (CS Energy or Employer). 

1. On 31 August 2023, the Commission was advised that the Employer, in effect, did not object to the Application on the basis that the proposed order be amended in relation to the notice to be given of industrial action under s.414(2)(b) of the Act. The CFMMEU consented to that variation.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Shane Brunker, District Vice President of the Mining and Energy Union Division 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 CS Energy, 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.  

1. 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.

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5) of the Act, justifying a seven (7) working days period of written notice for the purposes of s.414(2)(b) of the Act, when taking industrial action as defined in Questions 1, 5, 7, 8, 9, 10, 11, 12, 18, 21, 23 and 24.

1. 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 15 September 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR765719.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with any related matters associated with the proposed agreement. 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 is, in effect, ten (10) working days from the date of effect of the Order.

Printed by authority of the Commonwealth Government Printer

<PR765720>