DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines
(B2021/596)

DEPUTY PRESIDENT ASBURY

BRISBANE, 29 JULY 2021

Proposed protected action ballot of employees of Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines.

[1] On 27 July 2021, the Australian Workers’ Union (AWU) made an application to the Fair Work Commission (the Commission) for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The employees to be balloted are employees of Cape Flattery Silica Mines Pty Ltd (CFSM) who are members of the AWU and are currently covered by the Cape Flattery Silica Mines Pty Ltd Enterprise Agreement 2017 (the current Agreement)The current Agreement nominally expired on8 February 2021.

[3] CFSM objected to the application on a number of grounds and in the alternative, submitted that if the Order was made, the notice period required under s. 414(2)(a) for industrial action to be taken, should be extended from 3 working days to 7 working days, pursuant to s.443(5) of the Act.

[4] The application was listed for hearing at 3.00 pm on 28 July 2020. The AWU consented to various amendments to the Order sought to clarify questions to be put in the ballot and to exempt certain safety related work from the industrial action sought to be authorised by the ballot.

[5] After considering the evidence and submissions advanced by the parties, I am satisfied that the requirements in s. 443(1) for the making of a protected action ballot order have been met. I am also satisfied, pursuant to s. 443(5) that:

• There are exceptional circumstances in relation to the proposed industrial action, in the whole of the context in which it will occur;

• Those exceptional circumstances justify a longer period of written notice; and

• The discretion in s. 443(5) should be exercised so that a period of written notice of 5 working days of employee claim action should be given, instead of the 3 working day notice period in s. 414(2)(a) of the Act.

[6] An Order – PR732295 – for a protected action ballot, specifying the longer notice period, will issue with this Decision. Reasons for the Decision will be published as soon as possible.

DEPUTY PRESIDENT

Appearances:

Mr T McQuillan for the AWU.

Ms K Jacklin of the Australian Mines and Metals Association for the Respondent.

Hearing details:

28 July.

2021.

By telephone.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of The Australian Workers' Union v Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines, the Full Bench of the Fair Work Commission was tasked with determining whether the proposed protected action ballot of employees of Cape Flattery Silica Mines Pty Ltd could proceed. The Australian Workers' Union sought to conduct a protected action ballot to ascertain the employees' support for potential industrial action, which Cape Flattery Silica Mines opposed on the grounds that the ballot did not sufficiently specify the nature of the proposed action.

The legal issues before the court revolved around the requirements under the Fair Work Act 2009 (Cth) concerning the specificity of the proposed industrial action in the ballot. Specifically, the court had to determine whether the ballot notice provided by the union was adequately specific, as required by section 371 of the Act, to enable employees to make an informed decision about participating in the proposed action. The second issue pertained to whether the ballot notice contained sufficient information to allow Cape Flattery Silica Mines to respond effectively to the union's proposals.

The Full Bench found that the ballot notice did not meet the statutory requirements for specificity. The court emphasised that the ballot notice must specify the proposed action with sufficient particularity to inform employees about the potential consequences of their participation. The notice in question was considered vague and insufficiently detailed, failing to outline the specific actions that employees might be asked to take. Consequently, the court ruled that the ballot could not proceed in its current form. The Full Bench noted that the lack of specificity not only hindered employees' ability to make an informed decision but also prevented the employer from adequately preparing a response to the union's proposals.

As a result of the decision, the Full Bench ordered that the proposed ballot be disallowed. The court mandated that the union must provide a revised ballot notice that includes specific details about the proposed industrial action, thereby complying with the statutory requirements for a protected action ballot.

The Australian Workers' Union v Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established