DECISION

Fair Work Act 2009
s.447—Protected action

The Australian Workers’ Union
v
Boral Cement Limited
(B2021/560)

DEPUTY PRESIDENT DEAN

CANBERRA, 22 JULY 2021

Application for a variation of a Protected Action Ballot Order in B2021/400.

[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 [PR730692] (the Order) in matter B2021/400 on 11 June 2021. The Order was made upon application by The Workers’ Union (AWU) 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 AWU 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 Australian Workers' Union sought a variation of a Protected Action Ballot Order in relation to proposed industrial action by its members employed by Boral Cement Limited. The union aimed to amend the ballot order to include an additional type of industrial action not originally specified. Boral Cement Limited opposed the application, arguing that the proposed variation would significantly alter the scope of the industrial action and impact the fairness of the ballot process.

The central legal issue before the Commission was whether the proposed variation of the ballot order was justified under the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine whether the amendment would result in a ballot that was not substantially different from the one previously approved and whether the change was necessary to achieve a fair and effective resolution of the industrial dispute.

The Commission held that the proposed variation did not result in a substantially different ballot from the one previously approved. It found that the additional type of industrial action proposed by the union was closely related to the existing actions and would not fundamentally alter the nature of the dispute. Furthermore, the Commission determined that the amendment was necessary to achieve a fair and effective resolution of the industrial dispute, as it allowed the union to include all potential forms of action that might be relevant. Consequently, the application for the variation of the ballot order was approved, enabling the union to proceed with the amended ballot.

The Australian Workers' 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