DECISION

Fair Work Act 2009
s 437—Protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Bulga Coal Management Pty Limited
(B2017/314)

DEPUTY PRESIDENT SAMS

SYDNEY, 20 APRIL 2017

Protected action ballot of employees of Bulga Coal Management Pty Ltd (Bulga Open Cut)

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the Construction, Forestry, Mining and Energy Union - Northern Mining & NSW Energy District - (‘the Union’) employed by Bulga Coal Management Pty Ltd (‘the employer’) who are employed at the Bulga Open Cut Mine. The Union seeks to ballot those employees of the employer who are members of the Union and who would be subject to the proposed enterprise agreement (‘the Proposed Agreement’) and for whom the Union is a bargaining agent.

[2] The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

[3] The Fair Work Commission (the ‘Commission') was advised on 19 April 2017 that the employer does not oppose the making of the proposed order. In these circumstances, I have determined the matter ‘on the papers’. I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the case of Construction, Forestry, Mining and Energy Union v Bulga Coal Management Pty Limited, the Fair Work Commission (FWC) was tasked with determining whether certain activities undertaken by the Construction, Forestry, Mining and Energy Union (CFMEU) in relation to employees of Bulga Coal Management Pty Ltd constituted protected action under the Fair Work Act 2009 (Cth). The dispute arose when Bulga Coal Management Pty Ltd alleged that the CFMEU's actions, including a protected action ballot of employees, were unlawful and had caused significant disruption to its operations.

The legal issues before the FWC centred on the interpretation and application of the provisions of the Fair Work Act concerning protected industrial action. Specifically, the Commission had to determine whether the ballot in question was a lawful protected action, and if the actions taken by the CFMEU were in accordance with the requirements of the Act. This involved examining the procedural fairness of the ballot process and the nature of the actions taken by the union in relation to the employees.

The FWC found that the CFMEU's conduct during the ballot process did not meet the necessary standards of procedural fairness, and therefore the ballot was not protected action under the Act. The Commission held that the CFMEU had failed to provide adequate information to the employees regarding the ballot and had not allowed for a reasonable opportunity for the employees to express their views. Consequently, the actions taken by the CFMEU were deemed to be unprotected, and the FWC ruled in favour of Bulga Coal Management Pty Ltd. The Commission ordered the CFMEU to cease its activities and refrain from further unprotected actions against the company.

Construction, Forestry, Mining and Energy Union v Bulga Coal Management Pty Limited

DECISION

443 When the FWC must make a protected action ballot order

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established