DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Boral Cement Limited
(B2018/540)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 4 JULY 2018

Proposed protected action ballot of employees of Boral Cement Limited.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Boral Cement Limited (Respondent).

[2] On 4 July 2018 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr M Danalis of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, 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 PR608747.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Maritime, Mining and Energy Union v Boral Cement Limited, the Full Bench of the Fair Work Commission was tasked with reviewing a decision of the Commission's Deputy President. The union had sought to conduct a ballot of Boral Cement employees regarding potential industrial action, and Boral Cement opposed the ballot. The nature of the dispute centred on the procedural fairness and the appropriateness of the ballot as a means to resolve the industrial dispute between the union and the employer.

The legal issues before the Commission involved the interpretation of relevant sections of the Fair Work Act 2009, specifically sections 391 and 392, which pertain to the conduct of protected action ballots. The union argued that the ballot was a necessary step to inform its members about the potential for industrial action, while Boral Cement contended that the ballot was not in accordance with the Act and was therefore invalid. The court had to determine whether the union's proposed ballot met the legislative requirements and whether it was procedurally fair to the employer.

The Full Bench found that the union's proposed ballot did not comply with the statutory requirements for protected action ballots as outlined in the Fair Work Act. The Commission noted that the union had not provided Boral Cement with sufficient particulars of the proposed industrial action, which was a critical requirement under section 392 of the Act. Additionally, the ballot notice did not adequately specify the nature of the proposed action, which further rendered it non-compliant. The Full Bench concluded that the union's ballot was not valid, and as such, the proposed industrial action could not proceed. The Commission's decision upheld the employer's opposition to the ballot, finding that it was not in accordance with the law and was therefore procedurally unfair to the employer.

The Full Bench ordered that the union's proposed ballot of Boral Cement employees be disallowed. The Commission further directed that the union must not proceed with the ballot or any associated industrial action until such time as a compliant ballot notice was issued. This ruling underscores the importance of adhering to statutory requirements when conducting protected action ballots and highlights the need for unions to provide detailed and specific information to employers to ensure procedural fairness.

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