DECISION

Fair Work Act 2009
s.437—Protected action

Australian Rail, Tram and Bus Industry Union
v
Downer EDI Rail Pty Ltd
(B2020/592)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 OCTOBER 2020

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 (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 October 2020, 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 B 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 PR723292.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Rail, Tram and Bus Industry Union v Downer EDI Rail Pty Ltd, the dispute centred around the proposed protected action ballot by the employees of Downer EDI Rail Pty Ltd, represented by the Australian Rail, Tram and Bus Industry Union. The company sought to prevent the union from conducting the ballot, arguing that the ballot was not related to a protected industrial action and that it would cause significant disruption to its operations.

The primary legal issues that the court was required to determine were whether the proposed ballot constituted a protected action under the Fair Work Act 2009 and whether the potential disruption to Downer EDI Rail Pty Ltd's operations outweighed the employees' right to conduct the ballot. The court needed to balance the union's right to organise and conduct a ballot with the company's right to manage its business without undue interference.

The court examined the nature of the proposed ballot and its connection to protected industrial action. It found that the ballot was indeed related to a protected action, as it sought to gather employee support for potential industrial action in response to the company's proposed changes to the employees' working conditions. However, the court also considered the potential impact of the ballot on the company's operations. It determined that the potential disruption was significant and that the company had a legitimate interest in preventing the ballot from proceeding without adequate safeguards. The court ordered the union to take specific measures to minimise the disruption, including limiting the hours during which the ballot could be conducted and ensuring that the ballot did not interfere with essential services.

As a result of the court's decision, the union was required to implement the ordered measures before proceeding with the ballot. This outcome balanced the competing interests of both the union and the company, ensuring that the employees' right to organise was protected while also safeguarding the company's operational interests.

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