INDUSTRIAL ACTION – order against industrial action – ss.418, 604 Fair Work Act 2009 – appeal – Full Bench – at first instance the Commission made an order in relation to alleged unprotected industrial action taken by employees of Delta Coal Mining P/L (Delta Coal) engaged at the Appin mine site in New South Wales operated by South32 Ltd – grounds for appeal included that Commission erred in making the order in circumstances where he could not be satisfied that there were current employees of Delta Coal at the South32’s Appin coal mine taking industrial action at the time the order was made; that the Commission erred in making the order by taking into account extraneous or irrelevant matters, mistaking the facts and not taking into account material considerations in finding that he was satisfied that current employees of Delta Coal at the Appin mine were taking industrial action at the time the order was made; and that the order was not valid because it exceeded the power available under s.418 of the FW Act to make an order – on 20 December clause 3.2 of the Order was stayed pending the hearing and determination of the appeal [PR588831] – Full Bench not satisfied the Commission made any error of the requisite kind in finding that there was a continuing employment relationship between Delta Coal and the employees at the Appin coal mine – however Full Bench satisfied that the Order made at first instance was in certain respects beyond power – Full Bench grant permission to appeal the Order on this basis only and will vary it so as to bring it within the Commission’s jurisdiction – MUA v Patrick Stevedores considered – alleged lack of specificity in the Order – definition of ‘Industrial Action’ restricted – clause 3.2 of the Order deleted – at clause 3.3 obligations are imposed being that the CFMEU its officers, employees, agents and delegates and the employees to immediately stop organising and refrain from organising any industrial action involving any of the employees – at clause 3.3(b) of the Order the CFMEU its officers, employees, agents and delegates and the employees must additionally not organise, aid, abet, direct, procure, induce, advise, authorise or encourage any employee to engage in industrial action and not facilitate any industrial action by any employee – found detail is unnecessary – additional obligations removed in the absence of any demonstrated necessity for their inclusion – Full Bench quashed those clauses of the Order that were found to be beyond power and issued an amended Order. Appeal by Construction, Forestry, Mining and Energy Union against order of Sams DP of 16 December 2016 [PR588682] Re: Delta Coal Mining P/L
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