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

[2022] FWC 1170

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

(B2022/436)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 MAY 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 13 May 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 Ms Amanda Swayn 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 PR741614.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union (Applicant) lodged an application under section 437 of the Fair Work Act 2009 seeking a protected action ballot order in relation to certain employees of Downer EDI Rail Pty Ltd (Respondent). The application was made on the basis of the union's assertion that it had been genuinely attempting to negotiate a new enterprise agreement with the Respondent. Downer EDI Rail Pty Ltd did not object to the application, leading Deputy President Clancy to determine the matter on the papers without a hearing. The application sought to allow the union to conduct a ballot of its members regarding protected industrial action in the event that negotiations failed and an agreement could not be reached.

The central legal issue before the Deputy President was whether the union had satisfied the statutory requirements to conduct a ballot for protected industrial action. Specifically, the court needed to determine if the union had genuinely attempted to negotiate in good faith and if the requisite notification period had elapsed. The union submitted a declaration by Ms Amanda Swayn, which outlined the bargaining process and the union's efforts to reach an agreement with the Respondent. The Deputy President's task was to assess the provided evidence and decide whether the union had fulfilled the conditions necessary for the ballot to proceed.

Upon reviewing the material before him, Deputy President Clancy concluded that the union had indeed been genuinely attempting to reach an agreement with the Respondent and that the requisite notification period had passed. This finding was based on the declaration of Ms Swayn and the absence of any objections from the Respondent. Consequently, the Deputy President determined that the requirements of section 443(1) of the Fair Work Act had been met. An order was subsequently issued in PR741614, allowing the union to proceed with the ballot for protected action.

The court's decision authorised the Australian Rail, Tram and Bus Industry Union to conduct a ballot of its members regarding protected industrial action. This authorisation was contingent upon the union's continued good faith efforts to negotiate a new enterprise agreement with Downer EDI Rail Pty Ltd and the completion of the necessary notification period. The Deputy President's order enabled the union to proceed with the ballot, ensuring that the employees' rights to organise and take industrial action were upheld in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established