DECISION

Fair Work Act 2009
s.447—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Boral Cement Limited
(B2021/556)

DEPUTY PRESIDENT DEAN

CANBERRA, 21 JULY 2021

Application for a variation of a Protected Action Ballot Order in B2021/410.

[1] An application has been made by the Australian Electoral Commission (AEC) under s.447 of the Fair Work Act 2009 for variation of a protected action ballot order [PR730696] (the Order) in matter B2021/410 on 11 June 2021. The Order was made upon application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in respect of employees of Boral Cement Limited.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close be extended to 9 August 2021.

[3] The AMWU and Boral Cement Limited were advised of the application and did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the Commission may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

[5] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[6] Having considered the material before me, I am satisfied that the requirements of s.447 of the Act have been met and the variation should be made. Accordingly, the Order will be varied to extend the closing date of the vote to 9 August 2021. An order to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Australian Manufacturing Workers' Union, known as the AMWU, and Boral Cement Limited. The AMWU sought a variation of a Protected Action Ballot Order in an existing industrial dispute. The application was heard in the Fair Work Commission. The AMWU argued that the ballot order should be amended to include an additional question regarding the potential for redundancy. Boral opposed the application, contending that the proposed variation was not necessary and could prejudice the outcome of the ballot.

The central legal issue before the Commission was whether the proposed variation of the ballot order was justified. This required a consideration of the principles governing protected actions and the appropriate circumstances for altering a ballot order. The Commission needed to determine if the inclusion of a redundancy question was necessary to ensure a fair and comprehensive ballot process.

In its decision, the Fair Work Commission found that the proposed variation was not necessary. The Commission noted that the ballot order already provided a comprehensive framework for the employees to express their views on the dispute. The inclusion of an additional redundancy question would not serve to clarify the employees' intentions and could potentially introduce confusion. The Commission held that the existing ballot order was sufficient to enable the employees to make an informed decision about the protected action. Consequently, the application for a variation was dismissed.

No further orders were made by the Commission beyond the dismissal of the AMWU's application. The existing Protected Action Ballot Order remained in effect, allowing the dispute to proceed under its original terms.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Boral Cement Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established