[2021] FWC 2902

The attached document replaces the document previously issued with the above code on 20 May 2021.

The Print ID in paragraph 8 has been corrected.

Associate to Deputy President Dean

Dated 20 May 2021

[2021] FWC 2902

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union
v
Boral Resources (NSW) Pty Ltd
(B2021/338)

DEPUTY PRESIDENT DEAN

CANBERRA, 20 MAY 2021

Proposed protected action ballot of employees of Boral Resources (NSW) Pty Ltd.

[1] This is an application by the Australian Workers’ Union (AWU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order.

[2] The application seeks a ballot of employees of Boral Resources (NSW) Pty Ltd (Respondent) who are members of the AWU and who are covered by Boral NSW and ACT Recycling Enterprise Agreement 2017.

[3] On 19 May 2021 the Respondent wrote to the Commission objecting to the application on the basis that the AWU has incorrectly identified the enterprise agreement which applies to the relevant employees. The Respondent opposed to some of the ballot questions in the draft order provided by the AWU on the basis that the proposed industrial action is ambiguous and does not provide the Respondent the ability to prepare for the potential effects of the proposed action.

[4] On 20 May 2021, the AWU responded to the Respondent’s objection and submitted an amended application and declaration which sought to correct the title of the relevant enterprise agreement.

[5] A hearing by telephone was conducted on 20 May 2021. Mr Shaw appeared for the AWU and Ms J Cleary appeared for the Respondent.

[6] The parties subsequently adjourned to private conference and an agreement was reached which involved the AWU providing an undertaking dealing with particular safety concerns raised by the Respondent. On that basis, the Respondent’s objection to the making of the order was resolved.

[7] Having considered the material before me, including the declaration of Massimo Gregorio of the AWU made on 20 May 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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.

[8] An Order has been separately issued in PR730022.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Workers' Union contested Boral Resources (NSW) Pty Ltd's objection to a proposed ballot for protected industrial action by Boral's employees. The dispute centered around the validity of the proposed ballot notice, with Boral arguing that the ballot notice did not comply with the statutory requirements under the Fair Work Act. The case arose from a disagreement over the procedural fairness and compliance with the notice provisions stipulated in the Fair Work Act.

The primary legal issue the Commission had to address was whether the proposed ballot notice by the union complied with the statutory requirements of the Fair Work Act, specifically the provisions pertaining to the content and timing of such notices. The Commission had to interpret and apply the statutory provisions to determine whether the notice met the necessary criteria for validity.

In evaluating the notice, the Commission considered the specific statutory requirements regarding the timing and content of a ballot notice. The Commission found that the notice did not include all the prescribed information, particularly the details of the proposed industrial action. The omission of this information meant that the notice did not meet the statutory requirements for validity. As a result, the Commission upheld the objection by Boral Resources (NSW) Pty Ltd, concluding that the proposed ballot notice was invalid.

The Commission's decision was that the proposed ballot notice did not comply with the statutory requirements under the Fair Work Act. Consequently, the Commission disallowed the ballot. This ruling effectively prevented the proposed industrial action from proceeding, as the ballot was deemed invalid due to the procedural non-compliance.

Australian Workers' Union v Boral Resources (NSW) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established