Construction, Forestry, Mining and Energy Union v Bulga Coal Management Pty Limited
[2010] FWA 641
•2 FEBRUARY 2010
[2010] FWA 641 |
|
DECISION |
Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot
v
Bulga Coal Management Pty Limited
(B2010/2592)
DEPUTY PRESIDENT SAMS | SYDNEY, 2 FEBRUARY 2010 |
Application to extend the 30 day period of authorised industrial action.
[1] The Construction, Forestry, Mining and Energy Union (the Union) filed an application, pursuant to s 459 of the Fair Work Act 2009 (‘the Act’), on 21 January 2010. The Union seeks an extension of the 30 day period of protected action which commenced on 22 December 2009 at Bulga’s open cut coal mining operation located 18 km south of Singleton, NSW. The Union has approximately 250 members employed by the Company at the Mine. Following a series of negotiations for a new agreement during late 2009, a Protected Action Ballot Order [PR992017] was made by Senior Deputy President Drake on 17 December 2009. The 30 day period expired on 20 January 2010.
[2] Section 459(3) of the Act is in the following terms:
“(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:
(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and
(b) the period has not previously been extended.”
[3] The Union submitted that Fair Work Australia should grant the application because:
“a. The 30-day period has not been previously extended.
b. The applicant is genuinely trying to reach an agreement with the respondent and is bargaining in good faith.
c. Granting the order will assist in furthering negotiations for a new enterprise agreement.
d. Granting the order will give practical effect to the democratic decision of employees to authorise certain forms of employee claim action.
e. Granting the order will avoid the cost, delay and inconvenience associated with the applicant seeking a further protected action ballot of employees.
f. Such other grounds and reason as the Tribunal regards as appropriate.”
[4] The Union relied on an amended affidavit of Mr Gregory Sharp (Vice President of the Northern District Branch of the Union) sworn on 20 January 2010. Fair Work Australia listed the matter on 29 January 2010 and Mr K Endacott, Mr G Sharp and Mr S Peel appeared for the Union. I received a letter from Mr Nigel Wood (Operations Manager, Bulga Mine) in which he indicated that the Company did not oppose the application. However, he sought an amendment to the order which the Union did not oppose.
[5] Having heard the submissions of Mr Endacott and Mr Sharp and considering the correspondence of Mr Wood, I see no reason why the protected action period should not be extended as permitted by s 459(3) of the Act. In particular, I note the protected action period had not been previously extended.
[6]
I order accordingly. See separate order made on 29 January 2010.
DEPUTY PRESIDENT
Appearances:
K Endacott with G Sharp and S Peel for the Construction, Forestry, Mining and Energy Union.
Hearing details:
2010.
Sydney:
January 29.
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