Transport Workers' Union of Australia v Boral Cement Limited Summary

[2025] FWC 1246

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Boral Cement Limited

(B2025/729)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 2 MAY 2025

Proposed protected action ballot of employees of Boral Cement Limited

This is an application by the Transport Workers’ Union of Australia acting through its NSW/QLD/VIC/TAS (Interim Governance) Branch (TWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Boral Cement Limited (Boral Cement or Employer).

On 2 May 2025, the Commission was advised that the Employer, in effect, did not object to the Application.

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

On the basis of the material before me, including the declaration of Gregory John Leslie, Official, setting out the steps taken by the TWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Boral Cement, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 16 May 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR786982.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia, acting through its NSW/QLD/VIC/TAS (Interim Governance) Branch, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Boral Cement Limited. The union sought to conduct a ballot for potential protected industrial action due to ongoing difficulties in reaching an agreement with the employer. Boral Cement did not oppose the application, and the Commission determined to proceed on the basis of the submitted documentation.

The central legal issue before the Deputy President was whether the application met the statutory requirements for a protected action ballot, specifically under section 443 of the Act. This involved verifying that the union had genuinely attempted to reach an agreement and that the requisite notification period had been observed. The Deputy President examined the declaration by Gregory John Leslie, an official of the union, which outlined the steps taken during the bargaining process and confirmed the union's good faith efforts.

Having reviewed the evidence, the Deputy President concluded that the union had met all necessary conditions. The union's attempts to reach an agreement were deemed genuine, and the notification period for the proposed agreement was appropriately set. Consequently, the Commission granted the application for a protected action ballot order. The Deputy President also set the closing date for voting as 16 May 2025, which aligns with the 10 working days from the issuance of the order. Additionally, the matter was scheduled for a compulsory conciliation conference under section 448A of the Act to ensure continued and meaningful negotiations between the parties.

In conclusion, the Fair Work Commission approved the union's application for a protected action ballot. The ballot will be conducted by Fair Vote Services Pty Ltd, an approved agent under section 468A of the Act. The decision sets the closing date for voting and mandates a compulsory conciliation conference to facilitate further negotiations between the union and Boral Cement.

Transport Workers' Union of Australia v Boral Cement Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established