Australian Workers' Union v Boral Resources (Victoria) Pty Ltd T/A Boral Quarries

[2022] FWC 2670

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Boral Resources (Victoria) Pty Ltd T/A Boral Quarries

(B2022/1507)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 OCTOBER 2022

Proposed protected action ballot of employees of Boral Resources (Victoria) Pty Ltd T/A Boral Quarries.

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 Resources (Victoria) Pty Ltd T/A Boral Quarries (Respondent).

On 4 October 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 James Weissmann 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 PR746482.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union, acting as the applicant, made an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of Boral Resources (Victoria) Pty Ltd, trading as Boral Quarries, referred to as the respondent. The application was heard by Deputy President Clancy of the Fair Work Commission, based in Melbourne, on 4 October 2022. The primary dispute centered around the proposed protected action ballot of employees of Boral Quarries. The respondent did not object to the application, leading Deputy President Clancy to determine the matter based on the documentation provided, without the necessity of a hearing.

The legal issues at the core of this case involved whether the Australian Workers’ Union had genuinely attempted to negotiate in good faith with Boral Resources (Victoria) Pty Ltd, and if the statutory requirements for a protected action ballot were met. Specifically, the court had to determine if the notification period stipulated in the proposed agreement was valid and if the conditions outlined in section 443(1) of the Fair Work Act 2009 were satisfied. The declaration submitted by Mr James Weissmann of the Australian Workers’ Union, detailing the bargaining efforts and the union's genuine attempts to reach an agreement with the respondent, was pivotal in this assessment.

Deputy President Clancy examined the material presented, including Mr Weissmann’s declaration, and concluded that the union had indeed been genuinely trying to reach an agreement and that the notification period for the proposed agreement was valid. Furthermore, the court found that all requirements set forth in section 443(1) of the Act were fulfilled. Consequently, the court granted the application for a protected action ballot order. A separate order was also issued in PR746482.

This decision underscores the importance of adherence to the statutory requirements in the Fair Work Act 2009 when it comes to protected action ballots and the necessity for genuine negotiation efforts by unions. The court's ruling facilitates the union's ability to proceed with the ballot, thereby allowing the employees to have their say on the proposed agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established