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

[2022] FWC 3104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Boral Resources (NSW) Pty Ltd

(B2022/1747)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 NOVEMBER 2022

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

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 (NSW) Pty Ltd (Respondent).

On 22 November 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Massimo Gregorio of the Applicant declared on 16 November 2022, 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.

An Order has been separately issued in PR748200.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (AWU) applied to the Fair Work Commission (FWC) for a protected action ballot order concerning certain employees of Boral Resources (NSW) Pty Ltd under section 437 of the Fair Work Act 2009. The AWU alleged that the employees were not being fairly treated, and the application was made to allow the employees to vote on taking protected action. Boral Resources did not oppose the application, and the matter was determined by Vice President Catanzariti on the basis of the written submissions without a hearing.

The legal issue before the FWC was whether the AWU had satisfied the requirements for a protected action ballot under the Fair Work Act. The AWU had to demonstrate that it had genuinely attempted to reach an agreement with Boral Resources and that there was a notification period in relation to the proposed agreement. The FWC needed to consider the statutory declaration from the AWU and any other relevant evidence to determine if the union had met the criteria for the ballot order.

The FWC found that the AWU had provided sufficient evidence to satisfy the requirements for the protected action ballot. The union had made a genuine attempt to reach an agreement with Boral Resources and had met the notification period for the proposed agreement. The Vice President was satisfied that the requirements under section 443(1) of the Act had been met. Therefore, the FWC granted the AWU's application for a protected action ballot order.

An order was issued separately in PR748200, allowing the employees to vote on taking protected action. The FWC's decision was based on the material presented by the AWU and the absence of opposition from Boral Resources. The union's application was successful, and the employees could now proceed with the ballot as per the order issued.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established