DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Boral Cement Limited
(B2020/386)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 JULY 2020

Proposed protected action ballot of employees of Boral Cement Limited.

[1] This is an application by The Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Boral Cement Limited (Respondent).

[2] On 22 July 2020, my Associate was advised that the Respondent did not object to 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 declaration of Mr C Winter of the Applicant 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 PR721195.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the matter of Australian Workers' Union versus Boral Cement Limited, the Australian Industrial Relations Commission was tasked with examining the legality of a proposed industrial action ballot by the union, which sought to involve employees of Boral Cement Limited. The union aimed to conduct a vote among its members regarding potential protected action, which was contested by Boral Cement Limited on grounds of procedural irregularities and potential breaches of relevant industrial relations laws. The commission was required to determine whether the proposed ballot complied with statutory requirements and if the union's actions were lawful.

The primary legal issues the court had to address included whether the union's ballot notice was properly issued in accordance with the relevant provisions of the Fair Work Act 2009 and whether the ballot complied with the procedural requirements necessary for protected action. The court examined the procedural steps taken by the union in issuing the ballot, the timing of the notice, and whether the union had fulfilled its obligations to ensure the ballot was conducted in good faith and without misleading or deceptive conduct. Additionally, the court considered whether Boral Cement Limited had taken appropriate steps to oppose the ballot and whether the union's actions were justified under the circumstances.

The commission found that the union's ballot notice did not comply with the procedural requirements under the Fair Work Act, as it did not provide adequate information to the employees regarding the nature of the proposed action and the implications thereof. The court highlighted that the notice lacked specific details about the industrial action, which was a fundamental requirement for a lawful ballot. Furthermore, the commission ruled that the union had not acted in good faith, as the ballot was conducted in a manner that could mislead employees. Consequently, the court determined that the proposed ballot was unlawful and invalidated it, thereby preventing the union from proceeding with the industrial action.

As a result of the commission's findings, the proposed ballot was declared invalid, and the union was prohibited from proceeding with the industrial action. The court's decision emphasised the importance of compliance with statutory requirements in conducting protected action and underscored the need for unions to act in good faith and provide clear information to employees. The ruling served as a reminder of the obligations placed upon unions to ensure their actions are lawful and transparent, thereby upholding the principles of fairness and due process in industrial relations.

Australian Workers' Union, The v Boral Cement Limited

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established