Construction, Forestry, Mining and Energy Union v Oaky Creek Coal Pty Ltd

[2017] FWC 2151

[2017] FWC 2151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s437—Protected action

Construction, Forestry, Mining and Energy Union
v
Oaky Creek Coal Pty Ltd
(B2017/308)

DEPUTY PRESIDENT SAMS SYDNEY, 18 APRIL 2017

Protected action ballot of employees of Oaky Creek Coal Pty Ltd.

[1] This is an application, pursuant to s437 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 Oaky Creek Coal Pty Ltd (‘the employer’). The Union seeks to ballot those employees of the employer who are members of the Union, who are covered by the Oaky Creek North Mine Enterprise Agreement 2012 and who would be subject to the proposed enterprise agreement (‘the Proposed Agreement’) and for whom the Union is a bargaining agent.

[2] The relevant statutory provisions governing this application are set out at s443 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;

(c) the date by which voting in the protected action ballot closes;

(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.’

[3] I am satisfied that the application has been made in accordance with the requirements of s437 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. The Fair Work Commission (the ‘Commission’) was advised on 14 April 2017 that the employer does not oppose the making of the proposed order and directions. In these circumstances, I have determined the matter on the papers.

[4] Given that I am satisfied that s443(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 and directions in terms of the draft order and directions attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

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