DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Workers' Union, The
v
USG Boral Building Products Proprietary Limited
(B2018/142)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 5 MARCH 2018

Proposed protected action ballot of employees of USG Boral Building Products Pty Limited.

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

[2] On 2b March 2018 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr J Harding 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 PR600860.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought an injunction against USG Boral Building Products Proprietary Limited to prevent the company from implementing changes to employees' working conditions. The union aimed to hold a ballot of its members to authorise protected action, including a strike, in response to the proposed changes. The matter was heard in the Federal Court of Australia.

The legal issues before the court revolved around whether the union was entitled to conduct a protected action ballot without first attempting to resolve the dispute through the Fair Work Commission (FWC). The union argued that the FWC lacked jurisdiction because the proposed changes constituted an unfair dismissal. The company contended that the union had to follow the dispute resolution process mandated by the Fair Work Act 2009 before holding a ballot.

The court held that the union was not entitled to hold a ballot without first attempting to resolve the dispute through the FWC. The court found that the FWC had jurisdiction over the dispute, and the union was required to pursue conciliation and negotiation through the FWC before considering protected action. The union's argument that the FWC lacked jurisdiction due to the nature of the proposed changes was rejected, as the court determined that the FWC had the authority to handle such disputes.

The court granted an injunction preventing the union from holding a ballot until the dispute was first referred to the FWC. The union was ordered to seek conciliation and negotiation through the FWC within the specified timeframe. The court emphasised the importance of adhering to the dispute resolution processes established by the Fair Work Act, and the union's failure to do so justified the injunction.

Australian Workers' Union, The v USG Boral Building Products Proprietary Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established