Construction, Forestry, Mining and Energy Union - [2013] FWC 2748

[2013] FWC 2748

The attached document replaces the document previously issued with the above code on 13 May 2013.

In paragraph [21] the words ‘“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union’ have been removed. The sentence now reads as follows:

‘The Full Bench of Fair Work Australia in the case of John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 1 addressed the approach to be taken to the issue of the form of questions to be put to employees subject to protected action ballot orders.’

Annalise Wood

Associate to Commissioner Lewin

Dated: 15 May 2013.

[2013] FWC 2748

FAIR WORK COMMISSION

REASONS FOR 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, 13 MAY 2013

Proposed protected action ballot by employees of EnergyAustralia Yallourn Pty Ltd - form of questions to be balloted - notice of industrial action.

Introduction

[1] This matter is an Application by the Construction, Forestry, Mining and Energy Union (the CFMEU) 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 relevant statutory provisions are set out below:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in Application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee…

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 2748
Decision Date: 13 MAY 2013

CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Mining and Energy Union, as the applicant, and EnergyAustralia Yallourn Pty Ltd, as the respondent. The union sought a declaration that the form of questions to be balloted in a proposed protected action ballot by employees of the respondent was appropriate. The dispute centred around the adequacy of the notice provided to the employer by the union regarding the proposed industrial action. The case was heard in the Fair Work Commission.

The central legal issue before the court was whether the form of the questions to be balloted was appropriate. The court was tasked with determining whether the union had complied with the statutory requirements under the Fair Work Act 2009, particularly in relation to the form of questions to be balloted. Additionally, the court had to assess whether the notice of industrial action provided by the union was adequate and whether it complied with the relevant provisions of the Act.

The court considered the provisions of the Fair Work Act 2009, which set out the requirements for protected action ballots. The court found that the form of questions to be balloted by the union was appropriate, as it complied with the statutory requirements. Furthermore, the court determined that the notice of industrial action provided by the union was adequate and complied with the relevant provisions of the Act. As a result, the court granted the union's application and declared that the form of questions to be balloted was appropriate.

The Fair Work Commission declared that the form of questions to be balloted in the proposed protected action ballot by employees of EnergyAustralia Yallourn Pty Ltd was appropriate. The court found that the union had complied with the statutory requirements under the Fair Work Act 2009, and the notice of industrial action provided by the union was adequate and complied with the relevant provisions of the Act.

Orders