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

[2024] FWC 3295

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Boral Construction Materials Group Ltd T/A Boral

(B2024/1554)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 NOVEMBER 2024

Proposed protected action ballot of employees of Boral Construction Materials Group Ltd trading as Boral

This is an application by the Australian Workers’ Union (AWU or 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 Constructions Materials Group Ltd trading as Boral (Boral or Employer).

On 27 November 2024, the Commission was advised that the Employer, in effect, 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 Anthony Beven, Organiser, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Boral, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission (AEC).

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 14 January 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR781761.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application from the Australian Workers' Union (AWU) under section 437 of the Fair Work Act 2009 to obtain an order for a protected action ballot concerning certain employees of Boral Construction Materials Group Ltd trading as Boral. Boral, the employer, did not object to the application, thereby allowing the Commission to decide the matter based on the submitted documentation. The AWU had provided a declaration from Anthony Beven, an Organiser, detailing the union's efforts in negotiating with Boral and affirming its genuine attempts to reach an agreement. The Deputy President, Clancy, reviewed the application and found that the union had satisfied the conditions stipulated in section 443(1) of the Act, thereby establishing a notification period for the proposed agreement.

The Commission's primary task was to determine whether the AWU met the criteria for a protected action ballot, as outlined in section 443(1) of the Act. The union had to demonstrate that it had been genuinely attempting to negotiate with Boral and that a notification period existed for the proposed agreement. The Deputy President assessed the declaration from Anthony Beven and concluded that all the necessary requirements were fulfilled, allowing the application to proceed. Additionally, the Commission set the closing date for the ballot to be conducted by the Australian Electoral Commission as 14 January 2025. This date also determined the ballot period under section 448A(2) of the Act.

Given that the application was uncontested and the AWU had demonstrated a genuine attempt to negotiate, the Deputy President issued an order permitting the protected action ballot. The matter was assigned to another member of the Commission to conduct the compulsory conciliation conference as per section 448A of the Act. An order was issued, requiring all bargaining representatives to attend the conference, and directions were likely to be issued to ensure that the parties were prepared for meaningful negotiations. This decision ensured that the process for the proposed enterprise agreement would proceed in accordance with the Fair Work Act 2009.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established