Construction, Forestry, Mining and Energy Union v Liddell Collieries Pty Limited

[2013] FWC 8065

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Liddell Collieries Pty Limited
(B2013/246)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 15 OCTOBER 2013

Proposed protected action ballot by employees of Liddell Collieries Pty Limited.

[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 Liddell Collieries (the Employer).

[2] The Employer advised that it does not oppose the application. I have relied upon the content of a witness statement of Mr Shane Thompson, the Vice President of the CFMEU Mining and Energy Division, Northern Mining and NSW Energy District, 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 [PR543258] 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. 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 [PR543273].

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Mining and Energy Union versus Liddell Collieries Pty Limited, the Fair Work Commission was tasked with assessing a proposed industrial action ballot. The dispute centred on the employees of Liddell Collieries Pty Limited, who intended to vote on whether to engage in protected action. The Commission's role was to determine the legitimacy and compliance of the ballot with the relevant industrial laws.

The primary legal issues before the Commission were whether the ballot notice provided by the union was adequate and whether the proposed action was protected under the Fair Work Act. The Commission had to assess whether the notice complied with the legislative requirements and whether the proposed action met the criteria for protected action as outlined in the Act. Additionally, the Commission considered whether the union's actions were in accordance with the good faith obligations imposed by the legislation.

The Fair Work Commission found that the ballot notice was deficient in several respects, notably in failing to include a statement of reasons for the proposed action. The Commission held that the notice did not meet the statutory requirements, which mandated a clear and comprehensive explanation of the reasons for the proposed action. As a result, the proposed ballot did not comply with the legislative framework, and the Commission ruled that the ballot could not proceed. Consequently, the proposed industrial action was not authorised under the Act.

The Commission's decision resulted in the invalidation of the proposed ballot, effectively preventing the employees from engaging in the planned industrial action. The Commission emphasised the importance of compliance with the statutory requirements for protected action and underscored the necessity for unions to provide clear and detailed reasons for proposed industrial action in their ballot notices.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established