Australian Workers' Union v Boral Construction Materials Group Ltd T/A Boral Construction Materials

[2022] FWC 377

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Boral Construction Materials Group Ltd T/A Boral Construction Materials

(B2022/98)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 FEBRUARY 2022

Proposed protected action ballot of employees of Boral Construction Materials Group Ltd T/A Boral Construction Materials.

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 Construction Materials Group Ltd T/A Boral Construction Materials (Respondent).

On 22 February 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 Anthony Beven 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 PR738624.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission recently considered an application by the Australian Workers’ Union for a protected action ballot order concerning certain employees of Boral Construction Materials Group Ltd. The application was made under section 437 of the Fair Work Act 2009. The union sought to conduct a ballot of its members in relation to protected industrial action due to ongoing negotiations with the employer that had not resulted in a resolution.

The legal issues before the Commission included whether the union had genuinely attempted to reach an agreement with the employer, whether there was a notification period in relation to the proposed agreement, and if the requirements of section 443(1) of the Act were satisfied. These issues were crucial in determining whether the union could proceed with the proposed protected action.

In making its decision, the Commission reviewed the material provided, including a declaration from Mr Anthony Beven of the union, which outlined the bargaining steps taken and the union's efforts to reach an agreement with the employer. The Commission found that the union had genuinely attempted to negotiate with the employer and that a notification period existed for the proposed agreement. Additionally, it was determined that the requirements of section 443(1) of the Act had been met. Consequently, the Commission decided to grant the union's application for a protected action ballot order.

The Commission issued an order allowing the union to proceed with the ballot of its members regarding the proposed protected action. This decision was based on the evidence that the union had made genuine efforts to negotiate and that the statutory requirements were fulfilled.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established