Australian Rail, Tram and Bus Industry Union v Downer EDI Rail Pty Ltd

[2022] FWC 1419

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v

Downer EDI Rail Pty Ltd

(B2022/533)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 JUNE 2022

Proposed protected action ballot of employees of Downer EDI Rail Pty Ltd.

This is an application by the Australian Rail, Tram and Bus Industry Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Downer EDI Rail Pty Ltd (the Respondent).

On 6 June 2022, my Associate was advised that the Respondent 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 Mr Bryan Evans of the Applicant 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.

An order has been separately issued in PR742351.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Australian Rail, Tram and Bus Industry Union, seeking a protected action ballot order in relation to employees of Downer EDI Rail Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, which pertains to protected action. The dispute centres around the proposed industrial action, which the union intends to undertake to address the ongoing negotiations with the employer.

The legal issues that the court was required to address included whether the union had genuinely attempted to reach an agreement with the employer, whether the notification time for the proposed agreement was met, and whether the requirements of section 443(1) of the Act had been satisfied. The court had to assess the material presented by the union, including the declaration of Mr Bryan Evans, to determine if the union had genuinely tried to reach an agreement with the employer and if the notification time for the proposed agreement had been met.

The court was satisfied that the union had genuinely tried to reach an agreement with the employer and that the notification time for the proposed agreement had been met. The court also found that the requirements of section 443(1) of the Act had been satisfied. Consequently, the court decided to determine the matter on the papers without holding a hearing, as the employer did not object to the application.

In light of the findings, the court issued an order in PR742351, allowing the union to proceed with the protected action ballot. This decision ensures that the union can take necessary industrial action to address the ongoing negotiations with the employer, while also adhering to the requirements of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established