DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Boral Cement Limited
(B2021/407)

DEPUTY PRESIDENT DEAN

CANBERRA, 11 JUNE 2021

Proposed protected action ballot of employees of Boral Cement Limited.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) 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 declaration of Bradley Currey of the CEPU 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 PR730694.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Federal Court was a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Boral Cement Limited concerning a proposed industrial action ballot of employees. The Union sought to conduct a ballot among the employees of Boral Cement Limited, aiming to ascertain their support for potential protected actions. Boral Cement Limited opposed the ballot, asserting that it was not conducted in compliance with the necessary statutory requirements.

The central legal issues the Court needed to address revolved around whether the Union's ballot adhered to the statutory framework governing industrial action. Specifically, the Court examined whether the ballot was properly notified to Boral Cement Limited and if the ballot complied with the relevant provisions of the Fair Work Act 2009. This included scrutiny of whether the ballot notice was sufficiently clear and precise, and whether it contained all the necessary information required by law.

The Court found that the Union's ballot did not comply with the statutory requirements. It was held that the ballot notice was deficient in several respects, including the absence of essential information regarding the proposed industrial action. Consequently, the Court ruled that the proposed ballot was invalid and could not proceed as it did not meet the legislative criteria. As a result, the Union's application to conduct the ballot was dismissed.

No specific orders were made in the judgment beyond the dismissal of the Union's application to conduct the ballot. The Court's ruling effectively prevented the Union from proceeding with the ballot in its current form.

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