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

[2021] FWC 4613

[2021] FWC 4613

FAIR WORK COMMISSION

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

<PR732291>