DECISION

Fair Work Act 2009
s.447—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Boral Cement Limited
(B2021/559)

DEPUTY PRESIDENT DEAN

CANBERRA, 22 JULY 2021

Application for a variation of a Protected Action Ballot Order in B2021/411.

[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 [PR730698] (the Order) in matter B2021/411 on 11 June 2021. The Order was made upon application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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 CFMMEU 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 Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought a variation of a protected action ballot order in the matter of B2021/411 against Boral Cement Limited. The CFMEU aimed to amend the order to allow for a strike by its members at Boral's Yagoona site in Sydney, given the company's failure to meet an agreed timeline for enterprise agreement negotiations. Boral opposed the application, arguing that the proposed industrial action was not genuinely aimed at achieving the members' objectives and was excessive, given the progress made in negotiations.

The Commission had to determine whether the proposed strike was genuinely aimed at achieving the union's objectives, as required by the Fair Work Act. It also had to assess whether the industrial action was reasonable and proportionate to the circumstances, taking into account the progress made in negotiations and the potential impact on Boral's business operations. The central issue was whether the proposed strike was an appropriate and proportionate response to Boral's conduct, considering the overall context of the negotiations and the impact of the strike on the company's operations.

The Commission found that the proposed strike was genuinely aimed at achieving the union's objectives and was proportionate to the circumstances. The union had demonstrated that Boral had failed to meet agreed timelines for negotiations and had not made sufficient progress in addressing the union's concerns. The Commission acknowledged that the proposed strike was a significant measure, but it was reasonable and proportionate given the circumstances. The Commission concluded that the proposed industrial action was necessary to secure the union's objectives and was not excessive or unreasonable in the context of the ongoing negotiations.

The Commission granted the application for a variation of the protected action ballot order, allowing the CFMEU to proceed with the strike at Boral's Yagoona site. The decision highlighted the importance of timely and meaningful negotiations in avoiding unnecessary industrial action and emphasised the need for both parties to act in good faith to reach a resolution. The Commission's decision underscored the balance that must be struck between the rights of unions to take industrial action and the rights of employers to operate their businesses without undue disruption.

Construction, Forestry, Maritime, Mining and Energy Union 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