Construction, Forestry, Maritime, Mining and Energy Union v Maules Creek Coal Pty Ltd T/A Maules Creek Open Cut Mine Summary

[2023] FWC 864

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Maules Creek Coal Pty Ltd T/A Maules Creek Open Cut Mine

(B2023/328)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 APRIL 2023

Proposed protected action ballot of employees of Maules Creek Coal Pty Ltd T/A Maules Creek Open Cut Mine

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 Maules Creek Coal Pty Ltd (Respondent).

On 11 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 Jeremy McWilliams of the Applicant declared on 6 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 PR761011.

VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 to hold a protected action ballot for employees of Maules Creek Coal Pty Ltd, trading as Maules Creek Open Cut Mine. The dispute centred on the ability of the CFMEU to conduct the ballot without opposition from the employer, as stipulated under the Fair Work Act. The application was made in the context of ongoing negotiations between the union and the mining company. The company did not oppose the application, leading the Commission to determine the matter on the submitted documentation without a hearing.

The primary legal issue before the Commission was whether the union had genuinely been trying to reach an agreement with the employer and whether the notification period for the proposed agreement had been met. This required the Commission to assess the evidence provided by the CFMEU, specifically a statutory declaration by Jeremy McWilliams, detailing the union's negotiation efforts and the timeline of their interactions with the employer. The Commission's determination hinged on verifying that the union had fulfilled its obligations under section 443(1) of the Act, which outlines the conditions for holding a protected action ballot.

In its decision, the Commission accepted that the union had genuinely been attempting to reach an agreement with the employer and that the statutory notification period for the proposed agreement had been properly observed. The Vice President, Catanzariti, concluded that the union's application met the necessary criteria under the Fair Work Act, and thus the Commission was satisfied that the conditions for a protected action ballot were met. Consequently, an order was issued in PR761011, allowing the union to proceed with the ballot.

Construction, Forestry, Maritime, Mining and Energy Union v Maules Creek Coal Pty Ltd T/A Maules Creek Open Cut Mine

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established