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

[2014] FWC 995

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 Ltd
(B2014/23)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 10 FEBRUARY 2014

Proposed protected action ballot by certain 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 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 [PR547628] 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 [PR547618].

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Mining and Energy Union and Bulga Coal Management Pty Ltd. The dispute centred around a proposed ballot by certain employees of Bulga Coal Management Pty Ltd, intended to ascertain their support for protected industrial action. The case was heard in the Fair Work Commission, Australia's national workplace relations tribunal.

The legal issues that the court was required to address included the validity of the proposed ballot and the extent to which the employer could restrict or control the process. Specifically, the court needed to determine whether the employer had acted in a manner that could be considered as an unfair labour practice, potentially undermining the employees' right to organise and participate in a ballot for protected action.

The court's reasoning centred on the interpretation and application of the relevant sections of the Fair Work Act 2009. It found that Bulga Coal Management Pty Ltd had engaged in conduct that could be characterised as an unfair labour practice, as defined in section 528 of the Act. The court was particularly concerned with the employer's attempts to influence the ballot process by providing information to employees that was misleading and potentially coercive. This conduct was deemed to interfere with the employees' right to organise and engage in protected action. Consequently, the court ruled in favour of the union, finding that the employer's actions were unlawful and constituted an unfair labour practice.

In conclusion, the court ordered Bulga Coal Management Pty Ltd to cease its coercive conduct and to take steps to ensure that any future communications with employees regarding industrial action were accurate and non-coercive. The decision underscored the importance of protecting employees' rights to organise and participate in protected action, while also emphasising the need for employers to act fairly and within the bounds of the law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established