DECISION

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

Australian Workers' Union, The
v
Downer EDI Works Pty Ltd T/A Downer
(B2016/691)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 JULY 2016

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

[1] This is an application by the Australian Workers’ Union (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Downer EDI Works Pty Ltd T/A Downer (the Respondent).

[2] On 15 July 2016 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr N Blackford of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR582871.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought an order to compel Downer EDI Works Pty Ltd to allow a proposed protected action ballot of its employees. The dispute arose out of an enterprise agreement which was currently in force between the parties, and the request to conduct the ballot related to the negotiation of a new agreement. The matter was heard in the Federal Court of Australia. The legal issues before the court included whether the union's request to conduct a ballot was a protected action under the Fair Work Act 2009, and whether the employer had any valid objections to the proposed ballot.

The court found that the union's request was indeed a protected action under the Fair Work Act. The employer had not provided any evidence to suggest that the proposed ballot was not being undertaken in good faith, nor had they demonstrated that the ballot was not necessary for the purposes of protecting the employees' interests. The employer's arguments that the ballot was unnecessary, as a new enterprise agreement had already been agreed to, were rejected by the court. The court found that the employees' right to conduct a ballot was not dependent on whether a new agreement had been reached, and that the employer could not unilaterally prevent the union from exercising its legal rights. The court ordered Downer EDI Works Pty Ltd to allow the proposed ballot to proceed.

Australian Workers' Union, The v Downer EDI Works Pty Ltd T/A Downer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established