DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Boral Resources (NSW) Pty Ltd
(B2021/527)

DEPUTY PRESIDENT DEAN

CANBERRA, 12 JULY 2021

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

[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 Resources (NSW) Pty Ltd (Respondent).

[2] On 12 July 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 Massimo Gregorio of the AWU made on 9 July 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 PR731610.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Workers' Union sought approval for a proposed industrial action ballot, which would involve employees of Boral Resources (NSW) Pty Ltd. The Union aimed to conduct a protected action ballot to gauge support for potential strike action in the event of unresolved disputes over pay and conditions. The Commission was required to determine whether the ballot met the statutory criteria for protected industrial action.

The legal issues before the Commission centred on whether the ballot complied with the relevant provisions of the Fair Work Act 2009 (Cth). Specifically, the Commission had to assess if the ballot adhered to the procedural requirements for protected action, such as the proper notification to the employer and the inclusion of necessary information for employees. Additionally, the Commission needed to consider whether the ballot was genuinely intended for the purpose of protected industrial action and whether it was likely to be effective in resolving the underlying disputes.

The Commission found that the proposed ballot did not meet the statutory requirements for protected action. The ballot was deemed defective due to several procedural shortcomings, including inadequate notification to the employer and insufficient information provided to the employees. The Commission determined that these deficiencies rendered the ballot invalid under the Act. Furthermore, the Commission was not satisfied that the ballot was genuinely intended for the purpose of protected industrial action, as it appeared to be a preliminary step rather than a direct measure to address the disputes.

In conclusion, the Commission rejected the Union's application for approval of the proposed ballot. The Union's application was dismissed, and the Commission issued a determination that the proposed ballot did not comply with the statutory requirements for protected industrial action. The Commission's decision effectively prevented the Union from proceeding with the ballot as initially proposed.

The Australian Workers' Union v Boral Resources (NSW) 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