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

[2018] FWC 681

[2018] FWC 681

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
(B2018/60)

DEPUTY PRESIDENT CLANCY MELBOURNE, 1 FEBRUARY 2018

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

[1] On 30 January 2018, the Australian Workers’ Union (the AWU) applied for a protected action ballot order (the Application). In doing so, the AWU seeks an order that employees of Boral Resources (Vic) Pty Ltd (Boral) who are members of the AWU and who are currently covered by the Boral Asphalt (Victoria) Enterprise Agreement 2014, and for whom the AWU is a bargaining representative, be balloted to see if they support the taking of protected industrial action.

[2] In the afternoon on 30 January 2018, correspondence was sent by the Fair Work Commission to Boral seeking advice as to whether it opposed the Application. A short time later, Boral advised it objected to the “Notice of Protected Industrial Action” pursuant to s.414 of the Fair Work Act 2009 (the Act). The following morning, the Commission responded, noting that the matter was a protected action ballot order application and did not pertain to notice of protected industrial action.

[3] On 31 January 2018, the file was allocated to my chambers and I caused a Notice of Listing to be dispatched, setting the matter down for a directions hearing at 12.00pm on 1 February 2018. Following this, a Notice of Representative Commencing to Act was filed by FCB Workplace Law on behalf of Boral. The Commission was subsequently copied into correspondence from the AWU to Boral’s representative, which sought the basis of the objection to the Application and also confirmation that the amended application had been provided to it. The response confirmed the representative had been provided with the amended application and it was also noted “[t]here are no further objections from the Respondent.”

[4] I conducted a telephone directions hearing at 12.00pm on 1 February 2018. Mr Winter attended for the AWU, Ms Hall, Mr Rose and Ms Karabatos attended for and on behalf of Boral. At the hearing, Boral confirmed it did not oppose the Application.

[5] I am satisfied that:

1. The AWU is a bargaining representative for the employees 1 and the restriction in s.437(2A) of the Act does not apply;

2. The Application specifies the group of employees to be balloted and the questions to be put to the employees; 2

3. Boral and the AEC were copied into the correspondence which filed the Application in the Commission; 3

4. The nominal expiry date of the applicable agreement has passed; 4 and

5. The AWU has been and is genuinely trying to reach agreement with the employer of the employees who are to be balloted. 5

[6] Therefore, on the basis of the material before me and the submissions made by both parties at the telephone mention, I am satisfied the AWU has fulfilled the statutory prerequisites for a protected action ballot order, and accordingly, I must make a protected action ballot order. An Order will be issued separately to this decision

DEPUTY PRESIDENT

<PR510001>

 1   Fair Work Act 2009 (Cth) s 437(1).

 2   Ibid, s 437(3).

 3   Ibid, s 440.

 4   Ibid, s 438(1).

 5   Ibid, s.443(1) and Form F34B at question 2.1.

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