DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Ravensworth Coal Management Pty Limited T/A Ravensworth Surface Operations
(B2017/322)

DEPUTY PRESIDENT SAMS

SYDNEY, 27 APRIL 2017

Protected action ballot of employees of Ravensworth Surface Operations.

[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 Ravensworth Coal Management Pty Limited T/A Ravensworth Surface Operations (‘the employer’). The Union seeks to ballot those employees of the employer who are members of the Union, who are engaged by Ravensworth Coal Management Pty Limited 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.’

[3] The Fair Work Commission (the ‘Commission’) was advised on 20 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.

[4] 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 case before the court involved the Construction, Forestry, Mining and Energy Union and Ravensworth Coal Management Pty Limited, trading as Ravensworth Surface Operations. The dispute centred around a protected action ballot conducted by the union, which aimed to organise industrial action by employees of Ravensworth Surface Operations. The Fair Work Commission was the tribunal that heard the matter. The Commission had to determine whether the ballot was conducted in compliance with the relevant provisions of the Fair Work Act 2009.

The legal issues before the Commission included whether the union had provided the required notice to the employer prior to conducting the ballot, and whether the ballot complied with the procedural requirements set out in the Act. Specifically, the Commission needed to assess if the union had followed the correct process for conducting a ballot, including providing adequate information to the employees about the potential industrial action and its implications.

The Commission found that the union had not provided the requisite notice to Ravensworth Surface Operations before conducting the ballot. The union had only notified the employer of the ballot shortly before it was to take place, which was insufficient under the Act. Additionally, the ballot did not comply with the procedural requirements as the union had not adequately informed the employees about the potential consequences of the industrial action. Consequently, the Commission ruled that the ballot was invalid and did not constitute protected action under the Fair Work Act.

As a result of the findings, the Commission made orders that the ballot was invalid and that the union and its members were not protected from adverse action by the employer in relation to the conduct of the ballot. The Commission also directed the union to take steps to rectify the procedural shortcomings and to ensure compliance with the Act in future industrial actions.

Construction, Forestry, Mining and Energy Union v Ravensworth Coal Management Pty Limited T/A Ravensworth Surface Operations

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established