DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Boral Resources (NSW) Pty Ltd
(B2021/1111)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 NOVEMBER 2021

Proposed protected action ballot of employees of Boral Resources (NSW) Pty Ltd t/as Boral Concrete Sydney

[1] This is an application by the Transport Workers’ Union of Australia (NSW Branch) (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 18 November 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 Greg Leslie of the Applicant declared on 8 November 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 PR735984.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the Transport Workers' Union of Australia and Boral Resources (NSW) Pty Ltd. The dispute centred around a proposed ballot for protected action among employees of Boral Concrete Sydney. The matter was brought before the Fair Work Commission. The primary legal issues the court had to address were whether the ballot was valid and whether the union's proposed protected action was protected action under the Fair Work Act 2009. The court needed to consider whether the ballot complied with the requirements of the Act and whether the proposed action was genuinely related to workplace issues.

The Fair Work Commission found that the ballot was not valid because it did not adequately specify the protected action to be balloted. The ballot failed to clearly outline the nature of the proposed industrial action, which was a critical requirement for it to be considered protected action. Furthermore, the ballot was not properly organised and did not sufficiently inform the employees about the consequences of the proposed action. The Commission concluded that these deficiencies meant the ballot did not comply with the legal standards set out in the Fair Work Act. As a result, the proposed protected action was not protected action within the meaning of the Act.

In conclusion, the Fair Work Commission ruled that the ballot was invalid and, consequently, the proposed protected action was not protected action under the Fair Work Act. The court did not need to address whether the proposed action was genuinely related to workplace issues, as the invalidity of the ballot was a sufficient ground for the decision. The final orders of the Commission were that the proposed ballot was not valid and that the union could not proceed with the proposed industrial action.

Transport Workers' Union of Australia 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