Construction, Forestry, Mining and Energy Union v BM Alliance Coal Operations Pty Ltd

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union (CFMEU) filed an application against BM Alliance Coal Operations Pty Ltd (BMA), BHP Coal Pty Ltd, and Michael Nucifora (collectively, the respondents) to seek declarations that the election process for Site Safety and Health Representatives (SSHRs) at the Gregory Mine in Central Queensland, as proposed by the CFMEU, complied with the Coal Mining Safety and Health Act 1999 (Qld) (the Act). The CFMEU also sought a declaration that the respondents were not entitled to interfere with the proposed process. In response, BMA filed a cross-application seeking a declaration that the conduct of the election of SSHRs is vested in the site senior executive of the coal mine and that the electoral procedure proposed by BMA satisfied the requirements of the Act.

The central legal issues before the court were whether the election process proposed by the CFMEU complied with the Act and whether the electoral procedure proposed by BMA satisfied the requirements of the Act. The court considered the relevant provisions of the Act, which established a regime for the election of SSHRs but did not prescribe any method for conducting an election or any guidance as to who might call or conduct an election for SSHRs. The court examined the submissions and arguments from both parties, taking into account the purpose and objects of the Act and the principle of statutory interpretation.

After considering the evidence and arguments presented by both parties, the court concluded that neither the election process proposed by the CFMEU nor the electoral procedure proposed by BMA complied with the Act. The court found that the Act did not provide a clear method for conducting an election or designate a specific party responsible for calling or conducting an election for SSHRs. Consequently, the court dismissed both applications. The court did not grant the declarations sought by either party, leaving the question of how SSHRs should be elected at the Gregory Mine unresolved.

In BS9863 of 2011, the application was dismissed. In BS10122 of 2011, the application was dismissed.