Transport Workers' Union of Australia v Boral Resources (NSW) Pty Ltd

[2025] FWC 427

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Transport Workers' Union of Australia
v

Boral Resources (NSW) Pty Ltd

(B2025/244)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 13 FEBRUARY 2025

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

This is an application by the Transport Workers' Union of Australia (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 Resources (NSW) Pty Ltd (Boral or Employer).

On 12 February 2025, the Commission was advised that the Employer, in effect, did not object to the Application, as amended.

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, TWU 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, 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 27 February 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 PR784317.

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. This is consistent with the preliminary view of the Commission as advised to the parties and no grounds for an alternative earlier date were advanced.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Transport Workers' Union of Australia filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for certain employees of Boral Resources (NSW) Pty Ltd. The application was made to the Fair Work Commission, with the Deputy President Hampton presiding over the case. The employer did not object to the application, allowing the Commission to determine the matter based on the submitted documents.

The legal issues before the court involved verifying whether the union had genuinely attempted to reach an agreement with the employer and confirming if all the requirements under section 443(1) of the Act were met. The court had to ensure that the ballot, which was to be conducted by Fair Vote Services Pty Ltd, was carried out within the specified timeframe and adhered to the Act's provisions. Additionally, the Commission had to set a closing date for the voting period as per section 443(3)(c) of the Act.

The court found that the union had indeed made genuine efforts to reach an agreement with the employer, as evidenced by the declaration provided by a union official. The court was satisfied that the notification period for the proposed agreement was in place and that all requirements under section 443(1) of the Act were fulfilled. Consequently, the court granted the union's application, setting the closing date for voting as 27 February 2025. Furthermore, the court assigned the matter to another member of the Commission to conduct a compulsory conciliation conference under section 448A of the Act, aiming to facilitate meaningful negotiations between the parties.

In light of the decision, the court issued an order for the ballot to be conducted by Fair Vote Services Pty Ltd, which is authorised under section 468A of the Act. The court also set in motion the compulsory conciliation conference process, ensuring that all bargaining representatives would attend and be prepared to engage in substantive discussions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established