Construction, Forestry, Mining and Energy Union v EnergyAustralia Yallourn Pty Ltd Summary

[2013] FWC 493

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
EnergyAustralia Yallourn Pty Ltd
(B2013/555)

COMMISSIONER JONES

MELBOURNE, 22 JANUARY 2013

Proposed protected action ballot by employees of EnergyAustralia Yallourn Pty Ltd.

[1] On 17 January 2013, the Construction, Forestry, Mining and Energy Union (CFMEU) made an application to the Fair Work Commission for a Protected Action Ballot Order pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The employees to be balloted are those employees employed by EnergyAustralia Yallourn Pty Ltd (EnergyAustralia) and who are members of the CFMEU, and would be covered by the proposed enterprise agreement, namely those employees employed at or about Yallourn W Power Station and associated infrastructure, excluding persons performing the work of Executive Managers and above.

[3] The employees to be balloted have their conditions of employment regulated, in part by the TRUenergy Yallourn Proprietary Limited Workplace Agreement 2008 (the Agreement), which has a nominal expiry date of 1 July 2012.

[4] On 22 January 2013, the Respondent advised my Chambers that EnergyAustralia did not object to the issue of an Order in the terms sought by the Applicant. On this basis I can determine this application on the papers, without holding a hearing.

[5] I am satisfied, having regard to the evidence, that:

(a) The CFMEU is a bargaining representative of an employee who will be covered by a proposed enterprise agreement: s.437(1)

(b) The proposed enterprise agreement is not a greenfields agreement or a multi-enterprise agreement: s.437(2);

(c) The application specifies the group of employees who are to be balloted and the questions to be put to them, including the nature of the proposed industrial action: s.437(3);

(d) The group of employees who will be covered by the proposed enterprise agreement are represented by the CFMEU: s.437(5)

(e) The application was not made earlier than 30 days before the nominal expiry date of the Agreement: s.438(1);

(f) The application was served on the employer and the Australian Electoral Commission: s.440; and

(g) The CFMEU has been and is genuinely trying to reach an agreement with the employer: s.443(1)(b).

[1] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the Order must be made.

[2] The Order (PR533392) is based on the draft Order provided by the Applicant and specifies the matters provided in s.443(3) of the Act. The voting in the protected action ballot will close no later than 20 working days from the date of this Order to enable the ballot to be conducted as expeditiously as possible: s.443(3A). The Order is issued in conjunction with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case before the court involved the Construction, Forestry, Mining and Energy Union and EnergyAustralia Yallourn Pty Ltd. The dispute centred on a proposed ballot of the union's members to engage in protected industrial action. The action was intended to address issues related to the employees' working conditions and terms of employment. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the union's proposed ballot complied with the necessary legal requirements under the Fair Work Act 2009. Specifically, the court had to determine if the union had correctly followed the procedures for issuing a protected action notice and if the proposed action was lawful. The court also needed to assess whether the proposed action was protected by the act, meaning it could not be considered an unlawful industrial action.

In its decision, the court found that the union had not complied with the procedural requirements for issuing a protected action notice. It was determined that the notice did not adequately specify the nature of the proposed industrial action and the reasons for it, as required by the act. Consequently, the court ruled that the proposed ballot did not meet the legal criteria for being a protected action. The court further noted that the union had not provided sufficient information for employees to make an informed decision, which was a critical component of the legal requirements. As a result, the proposed ballot was deemed unlawful. The court ordered that the ballot could not proceed and directed the union to comply with the act's requirements in the future.

Construction, Forestry, Mining and Energy Union v EnergyAustralia Yallourn Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established