Australian Workers' Union v Boral Resources (Country) Pty Limited Summary

[2024] FWC 3514

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Boral Resources (Country) Pty Limited

(B2024/1645)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 17 DECEMBER 2024

Proposed protected action ballot of employees of Boral Resources (Country) Pty Limited

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 Resources (Country) Pty Limited (Boral or Employer).

On 17 December 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 Jack Ayoub, 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 3 February 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 PR782540.

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, in the matter of Australian Workers' Union versus Boral Resources (Country) Pty Limited, has received an application under section 437 of the Fair Work Act 2009 for a protected action ballot order. The Australian Workers' Union (AWU) is seeking the order on behalf of certain employees of Boral Resources (Country) Pty Limited. The application was made in B2024/1645, and Deputy President Hampton presided over the matter in Adelaide on 17 December 2024. The employer, Boral Resources, did not object to the application, leading the Deputy President to decide the matter based on the available documentation without holding a hearing.

The legal issues before the Commission were whether the AWU had satisfied the prerequisites for a protected action ballot, as outlined in section 443(1) of the Act, and if the notification time for the proposed agreement was properly established. The AWU had to demonstrate that it had genuinely attempted to reach an agreement with the employer and that it had taken the necessary steps to do so. The declaration of Jack Ayoub, the Organiser, provided the necessary evidence that the union had indeed been in good faith negotiations with the employer.

Upon reviewing the evidence, Deputy President Hampton concluded that all requirements of section 443(1) of the Act were fulfilled. The union had acted in good faith and had taken the necessary steps in its bargaining process. Consequently, the Commission granted the application and determined that the Australian Electoral Commission would conduct the ballot. The voting period was set to close on 3 February 2025, which aligns with the 30 working days sought in the application. This decision also set the ballot period for the purposes of section 448A(2) of the Act. Another member of the Commission will handle the compulsory conciliation conference, which is required under section 448A, and will issue an order for the attendance of all bargaining representatives at the conference. The member will likely also issue directions to ensure that the parties are prepared for meaningful negotiations at the conference.

Australian Workers' Union v Boral Resources (Country) Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established