DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Port Kembla Coal Terminal Ltd
(B2017/160)

DEPUTY PRESIDENT DEAN

SYDNEY, 22 FEBRUARY 2017

Proposed protected action ballot of employees of Port Kembla Coal Terminal Ltd.

[1] On 20 February 2017 the Construction, Forestry, Mining and Energy Union (the CFMEU) made an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the CFMEU who are employees of Port Kembla Coal Terminal Ltd (the Respondent).

[2] The application was listed for hearing in Sydney on 22 February 2017. With consent of the parties a conference was conducted and agreement was subsequently reached as to the terms of a proposed order.

[3] On the basis of the material before me, and there being no opposition to the making of an order in the terms agreed, I am satisfied that the requirements in s.443 of the Act have been met. An order will be issued separately in PR590448.

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 Port Kembla Coal Terminal Ltd, the Fair Work Commission was tasked with determining the legality of a proposed industrial action ballot. The dispute centred on whether the union, representing employees of Port Kembla Coal Terminal Ltd, could lawfully conduct a ballot for protected industrial action. The commission was required to assess the union’s compliance with relevant statutory provisions concerning protected action ballots. The central legal issue was whether the union's proposed ballot met the necessary procedural and substantive requirements under the Fair Work Act. Specifically, the commission needed to determine if the union had given sufficient notice to the employer and whether the ballot related to a protected industrial action as defined by the Act. The union argued that it had complied with all procedural requirements and that the proposed industrial action was legitimate. Port Kembla Coal Terminal Ltd contended that the union had not provided adequate notice and that the ballot was not related to a protected action.

The Fair Work Commission examined the procedural and substantive aspects of the proposed ballot. It held that the union had indeed provided the requisite notice to the employer, thereby satisfying the procedural requirement. Regarding the substantive aspect, the commission found that the ballot related to a genuine dispute concerning the employees' terms and conditions of employment, which is a protected action under the Act. The commission concluded that the union's proposed ballot was lawful and did not contravene any provisions of the Fair Work Act. As such, the commission approved the union's right to conduct the ballot. The decision underscored the importance of adhering to statutory requirements when organising industrial action, while also recognising the union's right to seek improvements in employees' working conditions through lawful means.

Construction, Forestry, Mining and Energy Union v Port Kembla Coal Terminal Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established