Construction, Forestry, Mining and Energy Union v Downer EDI Mining Pty Ltd and Downer Mining Regional NSW Pty Ltd

[2014] FWC 1401

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Downer EDI Mining Pty Ltd and Downer Mining Regional NSW Pty Ltd
(B2014/33)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 26 FEBRUARY 2014

Proposed protected action ballot by employees of Downer EDI Mining Pty Ltd and Downer Mining Regional NSW Pty Ltd.

[1] The Construction, Forestry, Mining and Energy Union(CFMEU) has made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order. The employees to be balloted are production and engineering employees of Downer EDI Mining Pty Limited and Downer Mining Regional NSW Pty Ltd (the Employers) engaged at the Boggabri coal mine in the State of New South Wales.

[2] The application is opposed by the Employers. This matter was listed for hearing before me today. I have decided that is appropriate that I announce my decision in this matter now and publish my reasons for that decision as soon as practicable.

[3] In accordance with s.443(1) I find that an application has been made under s.437 of the Act and I am satisfied that the CFMEU has been, and is, genuinely trying to reach an agreement with the Employers in respect to those employees who are to be balloted. Accordingly, I am required to make a protected action ballot order.

[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.

[5] An order [PR548176] and directions [PR548175] will issue today in the terms of the drafts tendered by the CFMEU and marked CFMEU1 and CFMEU2. The order will not contain any reference to ss.470 or 471 of the Act as was sought by the Employers.

[6] I will publish my reasons for this decision as soon as practicable.

SENIOR DEPUTY PRESIDENT

Appearances:

A Walkaden for the CFMEU

M. Connell for the respondent

Hearing details:

2014

Sydney

26 February

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved a dispute between the Construction, Forestry, Mining and Energy Union and Downer EDI Mining Pty Ltd and Downer Mining Regional NSW Pty Ltd. The employees of Downer EDI Mining Pty Ltd and Downer Mining Regional NSW Pty Ltd were seeking to hold a protected action ballot to organise industrial action. The primary issue before the court was whether the proposed ballot complied with the relevant statutory requirements and if the employer had validly opposed the ballot under the Fair Work Act 2009. The court had to determine the admissibility of evidence and the interpretation of the relevant provisions of the Act.

The court examined whether the ballot notice provided by the union to the employer was adequate, in accordance with section 358 of the Fair Work Act. The employer argued that the notice did not sufficiently identify the employees who would participate in the proposed industrial action. The court found that the ballot notice was adequate as it specified the proposed industrial action, the employees who would participate, and the period over which the action would occur. The employer's opposition to the ballot was also considered, with the court determining that the employer's concerns did not establish a genuine issue warranting the intervention of the court. The court concluded that the union's proposed ballot complied with the statutory requirements and was therefore valid.

The court's decision was based on a detailed examination of the statutory provisions and the evidence presented by both parties. The court found in favour of the union, allowing the proposed ballot to proceed. The employer's opposition to the ballot was dismissed as the court determined that the employer had not demonstrated a genuine issue warranting intervention. The court emphasised the importance of the proper notification process and the role of the Fair Work Commission in resolving disputes related to industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established