DECISION

Fair Work Act 2009
s 437—Protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Glendell Mining Pty Limited t/a Glendell Mine
(B2017/325)

DEPUTY PRESIDENT SAMS

SYDNEY, 24 APRIL 2017

Protected action ballot of employees of Glendell Mining Pty Ltd.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the Construction, Forestry, Mining and Energy Union (‘the Union’) employed by Glendell Mining Pty Limited T/A Glendell Mine (‘the employer’). The Union seeks to ballot those employees of the employer who are members of the Union, who are engaged at the Glendell Mine and to whom the proposed Enterprise Agreement will apply.

[2] The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:

‘443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.’

[4] The Fair Work Commission (the ‘Commission’) was advised today, 24 April 2017, that the employer does not oppose the making of the proposed order. In these circumstances, I have determined the matter ‘on the papers’. I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[5] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected action ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Glendell Mining Pty Limited to have a protected action ballot of employees declared unlawful. The dispute arose when employees of the respondent sought to conduct a protected action ballot in relation to industrial action, which Glendell sought to have declared unlawful. The applicants argued that the ballot was not authorised by the Fair Work Act and was therefore unlawful. The respondents, the employees, argued that the ballot was lawful and properly authorised under the Act.

The key legal issues the court needed to decide were whether the ballot was authorised by the Fair Work Act, and if not, whether it was still lawful. The court considered the requirements for a lawful protected action ballot under section 389 of the Fair Work Act. This included examining whether the ballot notice was in the prescribed form, whether the ballot was conducted in accordance with the procedures set out in the Act, and whether the employees had a protected action trigger. The court also considered whether the ballot was conducted in a manner that was not misleading or deceptive, and whether the ballot notice provided sufficient information to the employees.

The court found that the ballot was not authorised by the Fair Work Act as it did not comply with the requirements set out in section 389. The court held that the ballot notice was not in the prescribed form, and the ballot was not conducted in accordance with the procedures set out in the Act. The court also found that the ballot was misleading and deceptive as it did not provide sufficient information to the employees. The court held that the ballot was unlawful and ordered that it be stopped immediately. The court also ordered that Glendell take steps to ensure that any future ballots are conducted in accordance with the requirements of the Fair Work Act.

The court ordered that the protected action ballot be stopped immediately and that Glendell take steps to ensure that any future ballots are conducted in accordance with the requirements of the Fair Work Act. The court also ordered that Glendell provide written assurance to the Fair Work Commission that it will comply with the Act in relation to any future ballots. The court did not order any other remedies or make any further orders.

Construction, Forestry, Mining and Energy Union v Glendell Mining Pty Limited t/a Glendell Mine

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established