DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Boral Cement Limited
(B2021/411)

DEPUTY PRESIDENT DEAN

CANBERRA, 11 JUNE 2021

Proposed protected action ballot of employees of Boral Cement Limited.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) 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 Anthony Dimitriou of the CFMMEU 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 PR730698.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The matter before the Full Bench of the Fair Work Commission (FWC) was an appeal by the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) against a decision of the Commission that the proposed protected action ballot of employees of Boral Cement Limited was unlawful. The CFMEU sought to hold a ballot of its members who were employed by Boral Cement Limited to determine whether they would support protected action short of a strike, namely, a go slow, in order to pressure the employer to agree to the union’s proposed enterprise agreement. Boral opposed the ballot on the basis that the proposed action would interfere with the employer’s ability to carry on its business and would cause significant economic harm to its customers. The CFMEU argued that the proposed action was not unlawful, as it did not amount to a lock-out or lock-out threat, nor did it constitute unprotected action.
The FWC was required to decide whether the proposed protected action ballot was unlawful. The legal issue before the FWC was whether the proposed action would cause significant economic harm to the employer’s customers, and whether the proposed action amounted to a lock-out or lock-out threat. The FWC found that the proposed action would cause significant economic harm to the employer’s customers, as it would result in delays and increased costs for customers who relied on Boral’s products. The FWC also found that the proposed action did not amount to a lock-out or lock-out threat, as it did not involve the employer preventing its employees from accessing their workplace.
The FWC found that the proposed action was unlawful, as it would cause significant economic harm to the employer’s customers. The FWC held that the proposed action would result in delays and increased costs for customers who relied on Boral’s products, and that this constituted significant economic harm. The FWC also found that the proposed action did not amount to a lock-out or lock-out threat, as it did not involve the employer preventing its employees from accessing their workplace. The FWC held that the proposed action was a form of protected action short of a strike, and that it was not unlawful as such. However, the FWC found that the proposed action was unlawful because it would cause significant economic harm to the employer’s customers.
The FWC dismissed the appeal and affirmed the decision of the Commission that the proposed protected action ballot was unlawful. The FWC held that the proposed action would cause significant economic harm to the employer’s customers, and that this was sufficient to render the proposed action unlawful. The FWC also held that the proposed action did not amount to a lock-out or lock-out threat, and that it was not unlawful as such. However, the FWC found that the proposed action was unlawful because it would cause significant economic harm to the employer’s customers. The FWC ordered that the proposed protected action ballot be not held.

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