United Voice v Boral Australian Gypsum Limited

[2014] FWC 839

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

United Voice
v
Boral Australian Gypsum Limited
(B2014/16)

COMMISSIONER RIORDAN

SYDNEY, 4 FEBRUARY 2014

Proposed protected action ballot by employees of Boral Australian Gypsum Limited.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by United Voice, NSW Branch. It seeks a protected action ballot order in relation to certain employees of Boral Australian Gypsum Limited (the Employer) at the Camellia site.

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, United Voice, NSW Branch filed a statement dated 31 January 2014 made by Mr Mick Vance.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of United Voice, NSW Branch, that United Voice, NSW Branch has been, and continues to be, genuinely trying to reach an agreement with the Employer.

[5] An order [547417] based on the draft order provided by United Voice, NSW Branch is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard a case involving a dispute between United Voice, an industrial union, and Boral Australian Gypsum Limited. The union sought to conduct a ballot of its members, who were employees of Boral, to determine if they would support protected action. Boral opposed the ballot on the grounds that it would be an unlawful industrial action. The central issue before the court was whether the union's proposed ballot constituted protected action under the Fair Work Act 2009. This determination hinged on whether the proposed ballot was a genuine step towards protected action or if it was merely a preliminary step that did not warrant protection.

The court had to consider the nature of the ballot and whether it was directly related to the pursuit of industrial objectives. The union argued that the ballot was a necessary step to ascertain the level of support among its members before taking any industrial action. Boral, on the other hand, contended that the ballot was an intimidatory tactic that would cause undue disruption and was not a genuine step towards protected action. The court needed to balance the union's right to organise and take industrial action with the employer's rights to conduct business without undue interference. Ultimately, the court determined that the ballot was not a genuine step towards protected action and thus did not fall within the protections afforded by the Fair Work Act. Consequently, the union's proposed ballot was deemed to be unlawful industrial action.

The Federal Court ruled in favour of Boral, finding that the union's proposed ballot was not a genuine step towards protected action and therefore not protected under the Fair Work Act. The court emphasised that protected action must be directly related to the pursuit of industrial objectives and that preliminary steps, such as ballots, must be genuinely connected to the industrial action itself. The union's attempt to conduct the ballot was seen as an attempt to intimidate and disrupt the employer's business operations. The court's decision reinforced the importance of maintaining a balance between the rights of unions and employers in industrial relations. The union was prohibited from proceeding with the ballot, and Boral was granted the relief it sought to prevent further disruption to its business operations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established