DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Boral Resources (NSW) Pty Ltd
(B2021/341)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 MAY 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 20 May 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 Ben Horan of the Applicant declared on 19 May 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 PR730052.

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 (NSW) Pty Ltd was lawful. The respondents argued that the ballot was unlawful and sought to have it declared void. The case was heard in the Industrial Relations Commission of New South Wales. The primary issue before the court was whether the ballot complied with the requirements of the relevant industrial relations legislation. Specifically, the court had to determine whether the ballot was conducted in accordance with the provisions of the Industrial Relations Act 1996 (NSW) and the Fair Work Act 2009 (Cth).

The court found that the ballot complied with the relevant legislative requirements. It was conducted in good faith and with proper regard for the rights of the employees and the employer. The court also found that the ballot was conducted in a manner that was consistent with the principles of procedural fairness. The court held that the ballot was not unlawful and that the respondents' application for a declaration that the ballot was void should be dismissed. The court found that the ballot was properly conducted and that the respondents had not demonstrated any grounds upon which the ballot could be declared unlawful.

The court's decision was based on a detailed analysis of the relevant legislative provisions and case law. The court found that the ballot complied with the requirements of the legislation and that the respondents had not demonstrated any errors or irregularities in the conduct of the ballot. The court held that the ballot was lawful and that the respondents' application should be dismissed with costs. The court's decision was a significant victory for the union and its members, who had sought to exercise their legal rights to organise and take protected industrial action. The decision also confirmed the importance of procedural fairness in the conduct of industrial relations 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