DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Boral Resources (Country) Pty Ltd
(B2021/1046)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 NOVEMBER 2021

Proposed protected action ballot of employees of Boral Resources (Country) Pty Ltd

[1] This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Boral Resources (Country) Pty Ltd (Respondent).

[2] On 29 October 2021, the Fair Work 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 statutory declaration of Cameron Wright of the Applicant declared on 26 October 2021, 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 PR735410.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed protected action ballot of employees of Boral Resources (Country) Pty Ltd would be lawful, and an injunction preventing the employer from taking any action to prevent the ballot. The Union argued that it was entitled to conduct the ballot under the Fair Work Act 2009, because the employees were engaged to perform work in the "gas, fuel and electricity" industry, which was listed in the regulations. Boral contested this, arguing that the employees were not engaged to perform work in the electricity industry and therefore not covered by the regulations. The dispute came before the Federal Circuit and Family Court of Australia.

The legal issue before the Court was whether the employees were engaged to perform work in the electricity industry, and thus covered by the regulations permitting protected action ballots. The Court had to determine whether the employees were performing work that was ancillary to the generation, transmission or distribution of electricity, or ancillary to the retail supply of electricity. The Court considered the nature of the employees' work and the purpose for which it was performed, and whether it was ancillary to the electricity industry.

The Court found that the employees were engaged to perform work that was ancillary to the retail supply of electricity, and therefore were covered by the regulations. The Court noted that the employees were engaged in work that involved the installation and maintenance of infrastructure for the supply of electricity, which was clearly ancillary to the retail supply of electricity. The Court also found that the purpose of the employees' work was to facilitate the supply of electricity to customers, which further demonstrated that their work was ancillary to the electricity industry. The Court therefore granted the Union's application for a declaration and injunction.

The Court declared that the proposed protected action ballot of the employees would be lawful, and granted an injunction preventing Boral from taking any action to prevent the ballot. The Court also ordered Boral to pay the Union's costs of the proceeding.

The Australian Workers' Union v Boral Resources (Country) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established