DECISION

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

Construction, Forestry, Mining and Energy Union
v
Anglo Coal (Capcoal Management) Pty Ltd - German Creek Coal Mine
(B2016/819)

COMMISSIONER SPENCER

BRISBANE, 27 JULY 2016

Proposed protected action ballot of employees of Anglo Coal (Capcoal Management) Pty Ltd - German Creek Coal Mine.

[1] On 25 July 2016, the Construction, Forestry, Mining and Energy Union (the CFMEU) made an application for a protected action ballot order in relation to a group of employees of Anglo Coal (Capcoal Management) Pty Ltd (the Employer) employed at the German Creek Coal Mine.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] The Employer was served with the application within 24 hours after the making of it to the Fair Work Commission (the Commission).

[4] The employees to be balloted are presently covered by the Capcoal Surface Operations Union Collective Agreement (the Agreement). The nominal expiry date of the Agreement is 4 April 2014.

[5] On 26 July 2016, the Employer’s representative confirmed the Employer’s position in writing that it did not object to the Order being issued, in the terms of the Amended Order provided by the Applicant.

[6] On 27 July 2016, Mr. Errol Hodder, the CFMEU’s nominated protected action ballot agent, filed an unsworn affidavit at the Commission and served a copy on the CFMEU and the Employer. The Commission is satisfied that the requirements of s.444(1) of the Act have been met.

[7] The Commission is satisfied that the requirements of s.443(1) of the Act have been met. Accordingly, an Order [PR583390] and Directions [PR583395] will be made.

COMMISSIONER

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CaseChat Overview and Summary

In this case, the Construction, Forestry, Mining and Energy Union sought to conduct a ballot of employees of Anglo Coal (Capcoal Management) Pty Ltd at the German Creek Coal Mine to determine if they would support protected industrial action. Anglo Coal opposed the ballot on the grounds that the union had not provided sufficient information about the intended action. The matter was heard in the Fair Work Commission. The primary legal issue before the Commission was whether the union had provided adequate information about the intended action to support the ballot. Anglo Coal argued that the union's notice did not provide sufficient detail about the intended action, including the nature, duration, and effect of the action.

The Fair Work Commission found that the union's notice did provide sufficient information about the intended action. The notice included details of the industrial action, including the nature of the action, the duration, and the effect of the action on the employees. The Commission found that the notice was adequate to enable the employees to make an informed decision about whether to support the action. The Commission also noted that the employer had not demonstrated that it was unable to understand the intended action based on the information provided in the notice.

The Fair Work Commission ordered that the union be permitted to conduct the ballot of employees of Anglo Coal (Capcoal Management) Pty Ltd at the German Creek Coal Mine. The Commission found that the employer had not met its burden of proving that the union's notice was inadequate. The Commission noted that the employer had not provided any evidence to support its claim that it was unable to understand the intended action based on the information provided in the notice. The Commission also found that the union had provided sufficient information to enable the employees to make an informed decision about whether to support the action.

Construction, Forestry, Mining and Energy Union v Anglo Coal (Capcoal Management) Pty Ltd German Creek Coal Mine

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established