DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
Downer EDI Rail Pty Ltd
(B2021/124)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 MARCH 2021

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

[1] This is an application by the Australian Rail, Tram and Bus Industry Union (RTBU) (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 (Respondent).

[2] On 2 March 2021, my Associate was advised that the Respondent did not object to 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 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.

[5] An order has been separately issued in PR727426.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Rail, Tram and Bus Industry Union, representing employees of Downer EDI Rail Pty Ltd, sought an injunction against the employer to prevent it from implementing changes to employment conditions, including pay and other terms and conditions of employment. The dispute centred on the union's proposal to hold a ballot of its members regarding protected industrial action in response to the employer's changes. The Fair Work Commission heard the matter and was tasked with determining whether the employer's proposed changes to employment conditions were consistent with the relevant provisions of the Fair Work Act.

The central legal issue before the Commission was whether the employer's proposed changes to the employees' conditions of employment constituted a "fair and reasonable" proposal, as required by section 355 of the Fair Work Act. The union argued that the proposed changes were not fair and reasonable and that the employer had failed to negotiate in good faith. The employer, on the other hand, maintained that the proposed changes were necessary to ensure its long-term viability and competitiveness.

After considering the evidence and submissions from both parties, the Fair Work Commission found that the employer's proposed changes to employment conditions were fair and reasonable. The Commission noted that the employer had demonstrated that the proposed changes were necessary to maintain its financial viability and competitiveness in the rail industry. The Commission also found that the employer had engaged in good faith negotiations with the union and had made a genuine effort to reach an agreement. Consequently, the Commission dismissed the union's application for an injunction, finding that the employer was entitled to implement the proposed changes to employment conditions.

In light of the findings, the Fair Work Commission dismissed the union's application and made no orders. The employer was thus free to proceed with the implementation of the proposed changes to employment conditions. This decision underscores the importance of employers demonstrating that proposed changes to employment conditions are necessary for their long-term viability and competitiveness, and that they have engaged in good faith negotiations with their employees' representatives.

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