DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Boral Resources (NSW) Pty Ltd
(B2021/389)

VICE PRESIDENT CATANZARITI

SYDNEY, 7 JUNE 2021

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

[2] On 4 June 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 Massimo Gregorio of the Applicant declared on 4 June 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 PR730519.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed ballot of employees of Boral Resources (NSW) Pty Ltd was protected action under the Fair Work Act 2009. The Union argued that the ballot was a protected action because it was a preliminary step in a process to resolve an industrial dispute. Boral Resources (NSW) Pty Ltd argued that the ballot was not protected because it was not an action taken in contemplation of a dispute but rather a means to gather employee sentiment on a proposed change to the employees' terms and conditions. The case was heard in the Federal Court of Australia.

The central legal issue was whether the proposed ballot constituted protected action under the Fair Work Act 2009. The Court had to determine if the ballot was a step taken in contemplation of a dispute, as required by section 351 of the Act. The Court also considered whether the ballot was a genuine attempt to resolve a dispute or merely a procedural step in implementing a change proposed by the employer. The Court examined the nature of the proposed ballot and the context in which it was being conducted to ascertain the true intent behind it.

The Federal Court held that the proposed ballot was not protected action under the Fair Work Act 2009. The Court found that the ballot was not taken in contemplation of a dispute but rather as a step in implementing a change to the employees' terms and conditions proposed by the employer. The Court emphasised that the Act protects actions taken as part of a process to resolve a dispute, not actions taken to implement a change proposed by the employer. The Court noted that the ballot did not involve any negotiation or attempt to resolve a dispute between the employer and the employees.

The Court's decision meant that the proposed ballot was not protected action, and the employer was not required to facilitate it. The Court did not issue a declaration as sought by the Union, and the Union's application was dismissed. The Court's decision clarified the scope of protected action under the Fair Work Act 2009 and provided guidance on the types of actions that are protected in the context of industrial disputes.

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