Australian Workers' Union, The v Boral Resources (Vic) Pty Ltd T/A Boral Asphalt

[2023] FWC 905

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The
v

Boral Resources (Vic) Pty Ltd T/A Boral Asphalt

(B2023/348)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 APRIL 2023

Proposed protected action ballot of employees of Boral Resources (Vic) Pty Ltd Trading As Boral Asphalt

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 Resources (Vic) Pty Ltd (Respondent).

On 17 April 2023, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Marc McPhee 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.

An order has been separately issued in PR761159.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union has applied to the Fair Work Commission for an order to conduct a protected action ballot among the employees of Boral Resources (Vic) Pty Ltd, trading as Boral Asphalt. The dispute centres on the terms of an enterprise agreement between the union and the company. Boral Resources did not object to the application, allowing the Deputy President to proceed with the determination on the papers without a hearing. The union's application under section 437 of the Fair Work Act 2009 seeks authorisation for the ballot, which is contingent upon satisfying specific statutory criteria, including the existence of a notification period for the proposed agreement and adherence to the provisions of section 443(1) of the Act.

The legal issues that the Deputy President needed to address were whether the union had genuinely attempted to negotiate with the employer and whether the procedural requirements for holding a protected action ballot were met. The union's declaration, provided by Mr. Marc McPhee, detailed the steps taken during the bargaining process and affirmed the union's genuine efforts to reach an agreement with Boral Resources. The Deputy President considered these submissions alongside other relevant materials to assess the union's compliance with the Act.

Upon reviewing the evidence, the Deputy President found that the union had indeed been genuinely trying to negotiate with the employer and that the union had fulfilled the necessary conditions to proceed with the ballot. The Deputy President determined that a notification period for the proposed agreement existed and that the union had complied with section 443(1) of the Act. Consequently, the application for a protected action ballot order was granted, with a separate order issued in PR761159.

In conclusion, the Fair Work Commission has authorised the Australian Workers' Union to conduct a protected action ballot among the employees of Boral Resources (Vic) Pty Ltd, trading as Boral Asphalt. The decision was based on the union's declaration and other evidence demonstrating their genuine negotiation efforts and compliance with the statutory requirements for such a ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established