Construction, Forestry, Mining and Energy Union v Loy Yang Power Management Pty Ltd

The Fair Work Commission heard a case brought by the Construction, Forestry, Mining and Energy Union on behalf of its members employed by Loy Yang Power Management Pty Ltd. The union sought to conduct a ballot for protected action, specifically a strike, to protest against proposed changes to their enterprise agreement. Loy Yang Power Management Pty Ltd opposed the ballot, arguing that the proposed action was unprotected as it did not comply with the requirements set out in the Fair Work Act 2009.

The legal issues before the Commission were whether the proposed industrial action was protected action under the Fair Work Act and whether the Commission should order a secret ballot to be held. The Commission had to consider whether the proposed action met the criteria for protected action, including whether it was related to a workplace matter and whether it was taken in accordance with the relevant provisions of the Act. Additionally, the Commission had to determine whether ordering a secret ballot would be appropriate in the circumstances.

The Commission found that the proposed industrial action was protected action under the Fair Work Act. The Commission held that the proposed action was related to a workplace matter and that it was taken in accordance with the relevant provisions of the Act. The Commission also found that ordering a secret ballot was appropriate in the circumstances. The Commission noted that the proposed action was significant and that there were concerns about potential employer retaliation against employees who participated in the ballot. The Commission concluded that a secret ballot would be the best way to ensure that employees could participate in the proposed action without fear of reprisal.

The Commission ordered that a secret ballot be held for the proposed industrial action. The Commission made orders for the ballot to be conducted in accordance with the relevant provisions of the Fair Work Act and for the results of the ballot to be communicated to the employer. The Commission also made orders for the protection of employees who participated in the ballot from any adverse action by the employer.