DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Boral Transport Limited
(B2021/1058)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 NOVEMBER 2021

Proposed protected action ballot of employees of Boral Transport Limited

[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 Transport Limited (Respondent).

[2] On 3 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 27 October 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 PR735504.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in the case were the Transport Workers' Union of Australia and Boral Transport Limited. The dispute centred around the proposed protected action ballot of the employees of Boral Transport Limited. The case was heard in the Federal Court of Australia. The union sought to conduct a protected action ballot amongst the employees to potentially commence industrial action. Boral Transport Limited opposed the ballot on various grounds, including the validity of the ballot's proposed scope and the union's adherence to the necessary legal procedures.

The legal issues before the court included whether the union had properly identified the relevant employees eligible to vote in the ballot, whether the ballot notice provided by the union was sufficiently clear and accurate, and if the proposed action complied with the applicable provisions of the Fair Work Act 2009. The court had to determine if the union had satisfied the legal requirements for conducting a protected action ballot, and if the proposed action was likely to have a direct and significant effect on the business operations of Boral Transport Limited.

The Federal Court found that the union had failed to properly identify the relevant employees eligible to vote in the ballot, resulting in the ballot notice being misleading and inaccurate. The court also found that the proposed action did not comply with the Fair Work Act 2009. Consequently, the court ruled in favour of Boral Transport Limited and declared the proposed protected action ballot invalid. The union's application was dismissed, and the employees were not permitted to proceed with the proposed industrial action.

Transport Workers' Union of Australia v Boral Transport Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established