ENTERPRISE BARGAINING – protected action ballot – s.437 Fair Work Act 2009 – applicant made two applications for protected action ballot orders in relation to certain employees of respondent – both applications heard together – respondent is contract operator of a mine owned by a third party – respondent’s mining services contract due to expire in 30 November 2017 – respondent contended applicant did not genuinely try to reach an agreement in bargaining negotiations – apart from this contested issue there is no dispute between the parties – Commission satisfied statutory requirements otherwise were met – considered JJ Richards & Sons – whether applicant genuinely trying to reach agreement a question of fact to be decided having regard to all of the facts and circumstances of the particular case [Esso] – several bargaining meetings and conversations about the pay increases and other proposed agreement issues occurred – respondent was confident an extension of the contract would be obtained but it was subsequently not successful – some of the content was contested – applicant contended its motivation or purpose was not to place industrial pressure on any third party and was genuinely trying to reach an agreement with respondent to benefit its members – Commission satisfied applicant was aware, amongst other issues, that it would be unlikely to negotiate variations to a related agreement which would be acceptable to the relevant members – some evidence was rejected and accepted – Commission found applicant genuinely tried to reach an agreement with respondent – held protected action ballot orders must be made – orders issued. Construction, Forestry, Mining and Energy Union v Downer EDI Mining P/L t/a Boggabri Open Cut Coal Mine and Anor
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