Australian Workers' Union v BOC Limited T/A BOC Summary

[2022] FWC 3366

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union

BOC Limited T/A BOC

(B2022/1852)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 DECEMBER 2022

Proposed protected action ballot of employees of BOC Limited

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 BOC Limited T/A BOC (Respondent).

On 22 December 2022, 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 Nguyen 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 PR749234

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has dealt with an application by the Australian Workers' Union (AWU) against BOC Limited, seeking a protected action ballot order in relation to certain employees of the Respondent. The application was made under section 437 of the Fair Work Act 2009 (FWA) for a ballot to be held on proposed protected action, which the AWU believed was necessary due to the failure of negotiations with BOC Limited. The case was heard by Deputy President Clancy in Melbourne, with the Respondent indicating it did not object to the application. Consequently, the Deputy President determined the matter on the papers, without the need for a hearing.

The legal issues the court had to resolve were whether the notification time for the proposed agreement had been met and whether the requirements under section 443(1) of the FWA had been fulfilled. The AWU submitted that it had genuinely tried to reach an agreement with BOC Limited and outlined the steps taken in bargaining with the Respondent. The court had to assess the AWU's declaration and the evidence provided to determine if the conditions for a ballot were satisfied. The core of the dispute was whether the AWU had sufficiently demonstrated that it had met the statutory requirements to hold a ballot for proposed protected action.

The Deputy President found that the AWU had fulfilled the statutory obligations necessary to hold a ballot, based on the declaration and the evidence provided. The declaration from Mr. Nguyen of the AWU stated that the union had been genuinely trying to reach an agreement with BOC Limited, and it had taken all necessary steps in the bargaining process. Given the lack of objection from the Respondent and the material before the court, the Deputy President was satisfied that the notification time had been met and the requirements under section 443(1) of the FWA were complied with. Therefore, the court granted the AWU's application for a protected action ballot order.

The court issued an order separately in PR749234, allowing the AWU to proceed with the ballot as requested. This decision underscores the importance of the AWU's compliance with the legislative requirements in initiating a protected action ballot, which the Deputy President found to be appropriately met in this case.

Australian Workers' Union v BOC Limited T/A BOC

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established