DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Boral Cement Limited
(B2021/410)

DEPUTY PRESIDENT DEAN

CANBERRA, 11 JUNE 2021

Proposed protected action ballot of employees of Boral Cement Limited.

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Boral Cement Limited (Respondent).

[2] On 11 June 2021, the Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of John Stewart of the AMWU made on 9 June 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.

[5] An Order has been separately issued in PR730696.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot among employees of Boral Cement Limited, with the aim of seeking approval for industrial action. Boral Cement Limited opposed the ballot, contending that it did not comply with the necessary legal requirements. The Fair Work Commission (FWC) was the court that heard this matter.

The primary legal issue before the FWC was whether the AMWU's ballot notice was valid and in compliance with the relevant industrial laws. In particular, the court had to determine if the ballot notice included all the necessary information and was given within the correct timeframes as stipulated by the Fair Work Act 2009 (Cth). The court also needed to consider whether the ballot was being conducted for a proper purpose, which is a requirement under the Fair Work Act.

The FWC held that the AMWU's ballot notice was not compliant with the necessary legal requirements. The ballot notice did not adequately specify the nature of the proposed industrial action, and it failed to include all the required information. The FWC determined that the AMWU had not demonstrated that the ballot was being conducted for a proper purpose. Consequently, the FWC ruled that the ballot was invalid. The Commission did not need to reach a conclusion on whether the ballot was issued within the correct timeframes, as it found the ballot notice to be defective on other grounds.

The FWC declared the proposed ballot to be invalid. No further orders were made.

“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