DECISION

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

Australian Workers' Union, The
v
USG Boral Building Products Pty Limited
(B2017/1010)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 OCTOBER 2017

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 Pty Limited (Respondent).

[2] On 26 October 2017 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 PR597177.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of The Australian Workers' Union versus USG Boral Building Products Pty Limited, the dispute centred around the employees' right to organise and engage in protected industrial action. The Australian Workers' Union sought to conduct a ballot among employees to determine if they wished to proceed with protected action, which included a strike. The company opposed this, arguing that the ballot was not conducted in accordance with the Fair Work Act 2009. The Fair Work Commission heard the matter, tasked with determining the validity of the ballot process and the legality of the proposed action.

The primary legal issues before the Commission were whether the ballot was conducted in a manner compliant with the Fair Work Act, and whether the proposed industrial action was protected action as defined by the legislation. The Commission had to examine the process of how the ballot was conducted, the notice provided to the employer, and the eligibility of the employees participating in the ballot. Furthermore, the Commission needed to ascertain whether the proposed action constituted protected action, which would afford it legal immunity from certain claims by the employer.

The Fair Work Commission found that the ballot process was not conducted in accordance with the Fair Work Act, as the required notice was not properly given to the employer. The Commission noted that the union's failure to provide adequate notice was a procedural flaw that invalidated the ballot. Consequently, the proposed industrial action was not protected action because the ballot process was flawed. The Commission ruled that the proposed action could not proceed as it did not meet the legal requirements for protected action. This decision was based on the strict procedural requirements set out in the Fair Work Act for conducting ballots and initiating industrial action.

The Fair Work Commission determined that the proposed industrial action could not proceed due to the invalid ballot process. The Commission's decision effectively nullified the union's attempt to organise the employees for protected action, as the procedural errors were significant enough to invalidate the entire process. This outcome underscores the importance of strict compliance with the legal requirements for organising and conducting industrial action under Australian labour laws.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established