United Collieries Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] FCA 904

FEDERAL COURT OF AUSTRALIA

United Collieries Pty Ltd v Construction, Forestry, Mining and Energy Union [2006] FCA 904 INDUSTRIAL LAW – industrial action during bargaining period approved by a protected action ballot of employees – where proposed industrial action is a series of actions – whether action commenced is during the 30 day period beginning on the date of the declaration of the result of the ballot if first of the series occurs within the 30 day period WORDS AND PHRASES – 'the action' Workplace Relations Act 1996 (Cth), Part 9; s 478 Davids Distribution Pty Ltd v National Union of Workers (1999) 91 FCR 463 referred to UNITED COLLIERIES PTY LTD ABN 67 001 990 209 v CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION NSD 1171 OF 2006 GYLES J 14 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1171 OF 2006

BETWEEN: UNITED COLLIERIES PTY LTD ABN 67 001 990 209

APPLICANT

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 14 JULY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1171 OF 2006

BETWEEN: UNITED COLLIERIES PTY LTD ABN 67 001 990 209

APPLICANT

AND: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION

RESPONDENT

JUDGE: GYLES J

DATE: 14 JULY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The Workplace Relations Act 1996 (Cth) (the Act) now requires that to be protected, industrial action which takes place during a bargaining period must be authorised by a secret ballot of relevant employees. This case concerns the nature of the industrial action that might be authorised and, in particular, the consequences of the necessity for such action to be commenced within a period of 30 days beginning on the date of the declaration of the results of the ballot. 2 The respondent Construction, Forestry, Mining and Energy Union (the Union) initiated a bargaining period by way of notice in accordance with s 423 of the Act on 5 April 2006. On 3 May 2006 the Union applied to the Australian Industrial Relations Commission for an order under s 451 of the Act that a protected action ballot be held. The order was made on 5 May 2006. In accordance with s 463(1)(g) the order included the questions to be put to the employees on the ballot. Those questions were: 'Question 1: Do you, for the purpose of advancing claims in the negotiation of a union collective agreement between the Construction, Forestry, Mining and Energy Union and United Collieries Pty Ltd authorise industrial action in the form of twenty four (24) hour stoppages of work?