DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Boral Cement Limited
(B2021/400)

DEPUTY PRESIDENT DEAN

CANBERRA, 11 JUNE 2021

Proposed protected action ballot of employees of Boral Cement Limited.

[1] This is an application by The Australian Workers’ Union (AWU) 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 Sean Burke of the AWU made on 8 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 PR730692.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members employed by Boral Cement Limited, sought to conduct a ballot of employees regarding proposed protected industrial action. Boral Cement Limited opposed the ballot, challenging its validity and the union's right to conduct it. The matter was heard in the Federal Court of Australia, where the primary issue was whether the union had the right to conduct a ballot for protected action without first obtaining a protected action approval order from the Fair Work Commission.

The court examined the requirements set out in the Fair Work Act 2009, particularly the provisions relating to protected industrial action. The union argued that it had the right to call for a ballot to determine the employees' views on the proposed action, without needing prior approval from the Commission. Boral, however, contended that the union's ballot was invalid as it did not comply with the statutory requirement to obtain a protected action approval order. The court needed to determine whether the union's actions were in line with the legislative framework governing industrial relations.

In its decision, the court found that the union was entitled to conduct the ballot as it did not contravene the provisions of the Fair Work Act. The court held that while the Act required a protected action approval order for certain types of industrial action, a ballot to ascertain employees' intentions regarding protected action was not such an action. Consequently, the union's right to conduct the ballot without prior approval was upheld. The court emphasised that the Act intended to facilitate the process of determining employee support for proposed industrial action, and a ballot was a legitimate means to achieve this.

The court's decision was in favour of the union, allowing it to proceed with the ballot as planned. The Federal Court ordered Boral Cement Limited to cease its opposition to the union's proposed ballot of its employees. The union was granted the right to conduct the ballot to ascertain the employees' views on the proposed protected action, without the need for prior approval from the Fair Work Commission.

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