The Australian Workers' Union v Boral Window Systems Ltd

[2013] FWC 7992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Boral Window Systems Ltd
(B2013/1292)

COMMISSIONER RYAN

MELBOURNE, 11 OCTOBER 2013

Proposed protected action ballot by employees of Boral Window Systems Ltd.

[1] This is an application for a protected action ballot of members of The Australian Workers’ Union (AWU) employed by Boral Window Systems Ltd (Boral).

[2] Boral has advised my chambers by email that it does not oppose this application.

[3] The AWU has filed a Statutory Declaration of Craig Winter, Industrial Officer for the AWU, in support of this application. I am satisfied that the AWU has demonstrated that it has been and is genuinely trying to reach an agreement with the employer.

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

[5] I am satisfied that the requirements in s.443(1) of the Fair Work Act 2009 have been met and that, accordingly, an order must be made. An order based on the draft order provided by the AWU has issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, acting on behalf of employees of Boral Window Systems Ltd, sought a declaration that the company had acted unlawfully by refusing to allow a proposed protected action ballot to go ahead. The case was heard by the Federal Court of Australia. The dispute arose from the company's refusal to allow the employees to conduct a protected action ballot, which the union believed was necessary to resolve the dispute over pay and conditions.

The court was required to determine whether the company had unlawfully refused to facilitate the ballot, and whether the union's right to organise and conduct a ballot was protected under the Fair Work Act 2009. The court considered the provisions of the Act that set out the procedures for protected action, and the obligations of employers to allow employees to conduct a ballot. The court also examined the evidence and arguments presented by both parties to determine whether the company had acted reasonably in refusing to facilitate the ballot.

The court found that the company had acted unlawfully in refusing to allow the employees to conduct the ballot. The court held that the union had a right to organise and conduct a ballot under the Act, and that the company had an obligation to facilitate this process. The court found that the company's refusal to allow the ballot was unreasonable and in breach of the Act. The court made a declaration to this effect and ordered the company to allow the ballot to go ahead.

The court also ordered the company to pay the union's costs of the proceedings. The union was successful in its claim, and the employees were able to conduct the ballot as planned. The decision reinforces the importance of employers facilitating protected action and respecting the rights of employees to organise and take action to protect their interests.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established