DECISION

Fair Work Act 2009
s.447—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Boral Cement Limited
(B2021/557)

DEPUTY PRESIDENT DEAN

CANBERRA, 23 JULY 2021

Application for a variation of a Protected Action Ballot Order in B2021/407.

[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 [PR730694] (the Order) in matter B2021/407 on 11 June 2021. The Order was made upon application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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 CEPU 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

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought a variation of a Protected Action Ballot Order that had previously been issued in the context of a dispute with Boral Cement Limited. The union had planned to organise a strike in support of its members' demands, which included higher wages and improved working conditions. However, the union sought to vary the order to allow for the strike to commence earlier than originally specified.

The legal issues before the Commission involved interpreting the terms of the original Protected Action Ballot Order and determining whether the proposed changes were reasonable and necessary in light of the circumstances. The union argued that unforeseen circumstances had arisen that necessitated an earlier commencement of the strike to protect its members' interests effectively. Boral, on the other hand, opposed the variation, contending that the proposed changes would cause significant operational disruptions and financial harm to the company without any justifiable benefit to the union or its members.

The Commission considered the evidence presented by both parties and evaluated the necessity and reasonableness of the proposed variation. The Commission found that the union had demonstrated that unforeseen circumstances had indeed arisen, which justified an earlier commencement of the strike. The Commission also noted that the proposed variation would not cause undue harm to Boral and that the benefits to the union and its members outweighed any potential negative consequences. Consequently, the Commission varied the Protected Action Ballot Order to permit the strike to commence on the earlier date sought by the union.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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