DECISION

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

Construction, Forestry, Mining and Energy Union
v
Dendrobium Coal Pty Ltd
(B2015/649)

COMMISSIONER JOHNS

PERTH, 29 JULY 2015

Proposed protected action ballot of employees of Dendrobium Coal Pty Ltd.

[1] On 28 July 2015, the Construction, Forestry, Mining and Energy Union (CFMEU) made an application for a protected action ballot order in relation to a group of employees of Dendrobium Coal Pty Ltd (Employer).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The Employer was served with the application within 24 hours after the making of it to the Fair Work Commission (Commission).

[4] The employees to be balloted are presently covered by the Dendrobium Mine Enterprise Agreement 2010 (Agreement). The nominal expiry date of the Agreement is 1 April 2014.

[5] On 29 July 2015, the Employer confirmed in writing that it did not object to the Order being issued.

[6] On 29 July 2015, Mr. Errol Hodder, the CFMEU’s nominated protected action ballot agent, filed an affidavit at the Commission. The Commission is satisfied that the requirements of s.444(1) of the Act have been met.

[7] The Commission is satisfied that the requirements of s.443(1) of the Act have been met. Accordingly, an Order [PR569947] and Directions [PR569969] will be made.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by Dendrobium Coal Pty Ltd seeking an order to prevent the Construction, Forestry, Mining and Energy Union from holding a ballot of its members employed by Dendrobium for the purpose of authorising protected action. Dendrobium contended that the ballot was unlawful because it was not related to a genuine dispute concerning terms and conditions of employment or other employment matters, as required under section 358 of the Fair Work Act 2009. The union argued that the ballot related to a genuine dispute concerning Dendrobium's failure to provide paid public holiday leave and other entitlements to certain employees.

The central legal issue before the Commission was whether the proposed ballot related to a genuine dispute concerning terms and conditions of employment or other employment matters. The Commission noted that the union's claim related to Dendrobium's failure to provide paid public holiday leave and other entitlements to certain employees, which were terms and conditions of employment. The Commission also considered that the dispute related to matters that directly affected the employment of the union members and that the ballot was a reasonable means of resolving the dispute. The Commission found that the proposed ballot related to a genuine dispute concerning terms and conditions of employment.

Given the above, the Commission dismissed Dendrobium's application and held that the union could proceed with the proposed ballot. The Commission noted that the union's claim related to terms and conditions of employment and that the dispute related to matters that directly affected the employment of the union members. The Commission also found that the ballot was a reasonable means of resolving the dispute. The Commission held that the proposed ballot related to a genuine dispute concerning terms and conditions of employment or other employment matters, as required under section 358 of the Fair Work Act 2009. Consequently, the Commission dismissed Dendrobium's application and allowed the union to proceed with the proposed ballot.

No further orders were made by the Commission.

Construction, Forestry, Mining and Energy Union v Dendrobium Coal Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established