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
(B2021/1005)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 OCTOBER 2021

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

[1] This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Cape Flattery Silica Mines Pty Ltd (Respondent).

[2] On 15 October 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Royce Grimwade of the Applicant declared on 14 October 2021, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An Order has been separately issued in PR735015.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that it was eligible to conduct a ballot of employees of Cape Flattery Silica Mines Pty Ltd T/A Cape Flattery Silica Mines to determine whether they would support protected action. The case was heard in the Federal Court of Australia. The dispute centred on whether the union was eligible to conduct the ballot under section 170CA of the Fair Work Act 2009, which requires that the union be the certified bargaining agent for the employees in question.

The court had to determine whether the union was the certified bargaining agent for the relevant employees. The union argued that it had been certified as the bargaining agent for employees at the mine. The employer contended that the union's certification had lapsed due to a failure to conduct a ballot within the required time frame. The court considered the legislative framework governing union certification and the procedural requirements for maintaining that certification.

The court found that the union was indeed the certified bargaining agent for the employees at the mine, as it had been certified under the relevant provisions of the Fair Work Act. The court held that the union's certification had not lapsed, as the employer had not taken the necessary steps to challenge the certification within the prescribed time frame. Consequently, the union was eligible to conduct a ballot of the employees to determine their support for protected action.

The court granted the union's application for a declaration that it was eligible to conduct the proposed ballot of employees. The court ordered that the union was entitled to proceed with the ballot in accordance with the provisions of the Fair Work Act.

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