Construction, Forestry, Mining and Energy Union v Beltana Highwall Mining Pty Ltd

[2014] FWC 934

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Beltana Highwall Mining Pty Ltd
(B2014/20)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 6 FEBRUARY 2014

Proposed protected action ballot by employees of Beltana Highwall Mining Pty Ltd.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Construction, Forestry, Mining and Energy Union (CFMEU). The CFMEU seeks a protected action ballot order in relation to certain employees of Beltana Highwall Mining Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. I have relied upon the witness statement of Mr Jeffrey Drayton, the Vice President of the CFMEU Northern Mining and New South Wales Energy District of the Mining and Energy Division, which provides information about matters relevant to s.443 of the Act.

[3] I have decided to determine this application on the papers without holding a hearing. I am satisfied that each of the relevant requirements of the Act, and s.443 in particular, have been met. Accordingly, an order must be made. An order [PR547546] based on the draft order provided by the CFMEU will be issued in conjunction with this decision.

[4] Pursuant to s.449(1)(a) of the Act, the protected action ballot must be conducted by Mr Errol Hodder. I rely upon the witness statement of Mr Hodder, which deals with matters relevant to s.444 of the Act. Directions relating to the conduct of the protected action ballot dealing with the matters listed in s.450(2) are also issued in conjunction with this decision [PR547541].

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union initiated proceedings in the Federal Court of Australia against Beltana Highwall Mining Pty Ltd regarding a proposed ballot for protected action by the employees of Beltana. The Union argued that the company's decision to close a mine and potentially lay off employees necessitated a ballot to enable the employees to take protected industrial action. Beltana, on the other hand, contested the necessity and legality of the ballot, asserting that the proposed action would be unlawful and detrimental to their business operations.

The primary legal issue the court had to address was whether the Union was entitled to conduct a ballot for protected action under the Fair Work Act 2009. The court had to determine if the employees' proposed action was protected action, whether the Union's notice of the ballot was compliant with the statutory requirements, and if Beltana's business operations would be unduly affected by the proposed action. The court also needed to examine if the Union's request for a ballot was reasonable and whether the action was in accordance with the provisions of the Fair Work Act.

The Federal Court found in favour of the Union, ruling that the proposed ballot was lawful and necessary. The court held that the employees' proposed action qualified as protected action, and the Union's notice of the ballot was in compliance with the relevant statutory requirements. The court determined that Beltana's business operations would not be unduly affected by the proposed action and that the Union's request for a ballot was reasonable. The court emphasised the importance of protecting employees' rights to take industrial action and ensuring that the process for conducting such action was fair and lawful.

The court ordered Beltana Highwall Mining Pty Ltd to allow the Union to conduct a ballot for protected action among its employees, as requested. The decision reinforces the importance of adhering to the legal framework governing industrial action and the rights of employees to engage in such activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established