DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Southern Colliery Maintenance Pty Ltd
(B2016/1320)

DEPUTY PRESIDENT DEAN

SYDNEY, 19 DECEMBER 2016

Proposed protected action ballot of employees of Southern Colliery Maintenance Pty Ltd.

[1] On 16 December 2016 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 Southern Colliery Maintenance Pty Ltd (the Respondent).

[2] The application was not opposed by the Respondent.

[3] The CFMEU has filed a statement of Mr Robert Timbs (District Vice President of the CFMEU) in support of the application.

[4] On the basis of the material before me, I am satisfied that there is a notification time in relation to the proposed agreement and that that the CFMEU has been, and is, genuinely trying to reach agreement with the Respondent.

[5] The CFMEU has specified, in accordance with s.437(4), that it seeks Mr James Simmonds to be the alternative agent to conduct the ballot. The Commission is satisfied of those matters in s.444 of the Act, specifically that Mr Simmonds is specified in the application and that he is a fit and proper person to conduct the ballot.

[6] In accordance with s.443(1) of the Act, the order sought by the CFMEU must be made. An order has been separately issued in PR588698.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in this case arose between the Construction, Forestry, Mining and Energy Union (CFMEU) and Southern Colliery Maintenance Pty Ltd. The CFMEU sought to conduct a protected action ballot among the employees of Southern Colliery Maintenance Pty Ltd, a company operating in the mining sector. Southern Colliery challenged the ballot, arguing that the CFMEU had not complied with the necessary legal requirements to conduct such an action. The case was heard and determined by the Fair Work Commission (FWC), the federal workplace relations tribunal in Australia.

The central legal issues revolved around the compliance of the CFMEU's ballot with the provisions of the Fair Work Act 2009 (Cth). Specifically, the FWC had to determine whether the union's ballot complied with the requirements for a valid industrial action ballot under section 378 of the Act. The key elements under scrutiny included whether the ballot notice was given in writing, contained specific information about the proposed action, and was served on the employer and the employees within the required timeframes. Additionally, the FWC needed to assess whether the union had taken all reasonable steps to inform all affected employees about the ballot.

The FWC meticulously reviewed the documentation and evidence provided by both parties. It found that the CFMEU had not fully complied with the statutory requirements for a valid industrial action ballot. The Commission highlighted deficiencies in the notice provided to the employees and the employer, including the absence of certain mandatory details. Consequently, the FWC ruled that the proposed ballot was invalid and could not proceed. The decision was based on the strict interpretation of the legislative requirements and the necessity for precise compliance to protect the rights of both employers and employees under the Fair Work Act.

The final orders of the FWC mandated that the CFMEU could not proceed with the ballot as it did not meet the statutory requirements. This decision underscored the importance of adherence to the legal framework governing industrial actions to ensure fair and lawful workplace practices.

Construction, Forestry, Mining and Energy Union v Southern Colliery Maintenance Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established