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

[2013] FWC 8323

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Bulga Coal Management Pty Limited
(B2013/245)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 23 OCTOBER 2013

Proposed protected action ballot by employees of Bulga Coal Management 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 Bulga Coal Management Pty Limited (the Employer).

[2] The Employer advised that it does not oppose the application. I have relied upon the witness statement of Mr Keenon Endacott, an Industrial Research Officer for the CFMEU Mining and Energy Division, Northern Mining & NSW Energy District, 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 [PR543634] based on the amended 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 and Mr James Simmonds. 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 [PR543633].

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter of Construction, Forestry, Mining and Energy Union versus Bulga Coal Management Pty Limited was heard in the Fair Work Commission. The dispute centred around the union's proposed protected action ballot, which the company sought to prevent on the grounds that it was not in accordance with the relevant industrial laws. The Commission was required to determine whether the union's ballot complied with the necessary legal standards and whether the company had valid grounds to seek an injunction.

The primary legal issue before the Commission was whether the union's ballot met the criteria set out in the Fair Work Act 2009, specifically sections 393 and 394. These sections outline the requirements for a protected action ballot, including the necessity for the ballot to be held in good faith and for a lawful purpose. The Commission also had to consider whether the company had demonstrated that the proposed ballot would result in significant harm to its business operations.

The Fair Work Commission found that the union's ballot did not comply with the legal requirements as it failed to include a specific question to the employees about their willingness to take industrial action. The Commission concluded that the ballot was not in good faith and did not serve a lawful purpose, thereby invalidating it. The company's application for an injunction was upheld, and the union's proposed ballot was prohibited. This decision underscores the importance of strict adherence to the procedural requirements for protected action ballots in Australian industrial law.

The Fair Work Commission ordered that the union's proposed ballot be invalidated and that an injunction be issued to prevent the union from proceeding with the ballot. The Commission emphasised the need for compliance with statutory requirements to ensure the legitimacy and fairness of industrial actions. This case highlights the significance of clear and precise ballot questions in the context of protected actions and the Commission's role in enforcing industrial laws.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established