DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Boral Resources (Vic) Pty Ltd T/A Boral Asphalt
(B2021/689)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 AUGUST 2021

Proposed protected action ballot of employees of Boral Resources (Vic) Pty Ltd T/A Boral Asphalt.

[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 Resources (Vic) Pty Ltd T/A Boral Asphalt (Respondent).

[2] On 19 August 2021, 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 James Weissmann 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 PR733004.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Workers' Union lodged an application on behalf of employees of Boral Resources (Vic) Pty Ltd, trading as Boral Asphalt, seeking approval of a proposed ballot for protected industrial action. The Union contended that the proposed action, including potential stoppages of work, was necessary to address outstanding wage claims and other workplace issues. Boral Resources contested the application, arguing that the proposed action was not appropriately linked to a genuine dispute and was potentially unprotected.

The central legal issue for the Commission was whether the proposed industrial action was protected action as defined under the Fair Work Act 2009. The Commission had to consider whether the Union's application complied with the requirements for a protected action ballot, including whether the proposed action was related to a genuine dispute, the notice provisions were met, and the action was appropriately linked to the employees' employment. The Commission also needed to assess if the proposed action was likely to result in unprotected industrial action, such as unprotected stoppages of work.

After examining the evidence and arguments presented by both parties, the Commission found that the proposed action was genuinely related to a dispute between the employees and the employer. The Commission was satisfied that the Union had complied with the relevant procedural requirements for a protected action ballot. It determined that the proposed action was appropriately linked to the employees' employment and was necessary to resolve the outstanding issues. Consequently, the Commission approved the proposed ballot for protected industrial action.

The final orders included the approval of the proposed ballot, allowing the employees to vote on the proposed industrial action. The Commission directed that the ballot be conducted in accordance with the provisions of the Fair Work Act, ensuring that the process was fair and transparent. The decision underscored the importance of addressing genuine workplace disputes through appropriate industrial action, provided that the procedural requirements were met.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established