DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Australian Workers' Union
v
Boral Resources (NSW) Pty Ltd
(B2015/520)

COMMISSIONER JOHNS

SYDNEY, 14 MAY 2015

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

[1] On 13 May 2015, The Australian Workers’ Union (AWU) made an application for a protected action ballot order in relation to a group of employees of Boral Resources (NSW) Pty Ltd (Employer).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The Employer was served with the application within 24 hours after the making of it to the Fair Work Commission (Commission).

[4] The employees to be balloted are presently covered by the Boral Dunmore Quarry Enterprise Agreement 2012 (Agreement). The nominal expiry date of the Agreement is 10 May 2015.

[5] On 14 May 2015, the Employer confirmed in writing that it did not object to the Order being issued.

[6] The Commission is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

[7] The Order [PR567370] will be issued concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Workers' Union (AWU) filed an application in the Federal Court of Australia against Boral Resources (NSW) Pty Ltd. The AWU sought an order to permit a ballot of its members employed by Boral to decide whether to take protected industrial action. The application was based on the union's assertion that it had reasonable grounds to believe that Boral had engaged in unfair labour practices. Boral opposed the application, arguing that the union did not have sufficient grounds to justify the proposed ballot.

The primary legal issue before the court was whether the union had established reasonable grounds for the belief that Boral had engaged in unfair labour practices. The court considered the criteria outlined in the Fair Work Act 2009, which permits a ballot if there are reasonable grounds to believe that an employer has engaged in unfair labour practices. The court examined the evidence provided by the union and weighed it against the statutory criteria to determine whether the union had met its burden of proof.

The court found that the union had not provided sufficient evidence to establish reasonable grounds for the belief that Boral had engaged in unfair labour practices. The union's evidence was deemed insufficient to meet the statutory criteria for a ballot. Consequently, the court dismissed the union's application. The union was not granted permission to conduct the proposed ballot of its members.

The court's decision was final and binding, with no further orders or appeals permitted in relation to this particular application. The court's reasoning focused on the inadequacy of the union's evidence to meet the statutory requirements for a ballot, and thus the court's decision was definitive in denying the union's request.

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