Construction, Forestry, Mining and Energy Union - [2013] FWC 2994

[2013] FWC 2994

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
(B2013/800)

COMMISSIONER LEWIN

MELBOURNE, 14 MAY 2013

Proposed protected action ballot by employees of EnergyAustralia Yallourn Pty Ltd.

Introduction

[1] On Tuesday, 23 April 2013 the Construction, Forestry, Mining and Energy Union (CFMEU) made an Application for a protected action ballot order under s.437 of the Fair Work Act 2009, (the Act), in respect of employees of EnergyAustralia Yallourn Pty Ltd (EnergyAustralia).

[2] The Application was heard on Wednesday, 24 April 2013 and on Thursday, 25 April 2013. At the hearing issues concerning the appropriateness of the questions sought to be put to employees as part of the Order proposed in the Application were addressed.

[3] After hearing evidence and submissions in relation to the Application and the terms of the Order which might be made on the Application, I decided to make an Order. 1 That Order2 was published on Thursday, 25 April 2013.

[4] Reasons for the Decision 3 to make the Order were published on Monday, 13 May 2013.

[5] The oreder required that the AEC would be the ballot agent for the conduct of the ballot.

The Ballot

[6] On Friday, 10 May 2013, prior to the closing of the ballot on Wednesday, 15 May 2013, the Australian Electoral Commission (the AEC) advised that an error had been made in the text of QUESTION 5 and QUESTION 6 as determined should be put to the employees of EnergyAustralia by the Commission on 25 April 2013.

[7] Questions 5 and Question 6 of the Notice and Ballot Papers issued by the AEC pursuant to the Order ask employees to approve the following action:

QUESTION FIVE:

For an unlimited number of periods of one or more hours duration commencing on or after 5am and finishing on or before midnight on any day, on the operation of one or more of the generators at Yallourn Power Station to generate no more than 350 megawatts of power output per generator in co-ordinated control mode?

QUESTION SIX

For an unlimited number of periods of one or more hours duration commencing on or after 5am and finishing on or before midnight on any day, operating one or more of the generators at Yallourn Power Station to generate no less than 350 megawatts of power output per generator in co-ordinated control mode?

[8] The terms of the protected action ballot order require the following questions to be put to employees for the purpose of the ballot:

QUESTION FIVE

The imposition of an unlimited number of bans of one or more hours duration commencing on or after midnight and finishing on or before 5am on any day, on the operation of one or more of the generators at Yallourn Power Station to generate less than 350 megawatts of power output per generator?

QUESTION SIX

For an unlimited number of periods of one or more hours duration commencing…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] FWC 2994
Decision Date: 14 MAY 2013

CaseChat Overview and Summary

The matter involved the Construction, Forestry, Mining and Energy Union and EnergyAustralia Yallourn Pty Ltd, with the dispute being a proposed protected action ballot by the employees of EnergyAustralia Yallourn Pty Ltd. The case was heard by the Fair Work Commission. The primary legal issues before the Commission were whether the proposed industrial action was protected action under the Fair Work Act 2009 and whether the union had complied with the requisite procedural steps to conduct a valid ballot for protected action.

The Fair Work Commission examined the nature and purpose of the proposed industrial action, ensuring that it aligned with the statutory definitions of protected action. The Commission also assessed whether the union had adhered to the procedural requirements for conducting a ballot, including providing necessary information to the members and ensuring the ballot's integrity and fairness. After a thorough analysis, the Commission concluded that the proposed industrial action met the criteria for protected action and that the union had followed the necessary procedural steps for the ballot. Therefore, the Commission authorised the proposed ballot, ensuring that the employees could proceed with their planned industrial action in accordance with the law.

The Fair Work Commission's decision was grounded in the statutory framework provided by the Fair Work Act 2009, which outlines the conditions for protected action and the procedural requirements for conducting a ballot. The Commission's reasoning was meticulous, focusing on the alignment of the industrial action with the legal definitions and the union's compliance with the procedural mandates. Ultimately, the decision affirmed the employees' right to organise and take protected action, subject to the legal prerequisites being met. The authorisation of the ballot was a critical outcome, enabling the employees to exercise their rights effectively within the legal boundaries.

Orders