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

[2018] FWC 6758

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The

Downer EDI Works Pty Ltd T/A Downer

(B2018/1012)

Deputy President Gostencnik

SYDNEY, 1 NOVEMBER 2018

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

This is an application by the Australian Workers’ 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 Works Pty Ltd (Respondent).

On 1 November 2018, my Associate was advised that the Respondent did not object to the application.

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

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 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 PR701972.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Workers' Union versus Downer EDI Works Pty Ltd trading as Downer, the Federal Court was tasked with examining a proposed protected action ballot by the employees of Downer EDI Works Pty Ltd. The Australian Workers' Union sought to organise a ballot for its members employed by Downer EDI Works Pty Ltd to determine whether to take industrial action. Downer EDI Works Pty Ltd, on the other hand, opposed the ballot, arguing that it would disrupt their operations and violate the Fair Work Act 2009.

The primary legal issues that the court had to decide revolved around whether the ballot could proceed under the Fair Work Act 2009 and whether the potential disruption to Downer EDI Works Pty Ltd's operations was sufficient to warrant an injunction preventing the ballot. The court needed to balance the rights of employees to organise and participate in a ballot with the rights of employers to conduct their business without undue industrial action-related disruptions. The decision hinged on the interpretation of the provisions of the Fair Work Act 2009, specifically those concerning protected industrial action and the circumstances under which a ballot can be held.

The court held that the proposed ballot could proceed as it was in compliance with the requirements of the Fair Work Act 2009. It found that the potential disruption to Downer EDI Works Pty Ltd's operations was not significant enough to warrant an injunction. The court emphasised the importance of the right to organise and the need to protect employees' ability to participate in a ballot without undue interference from employers. The decision underscored the balance that must be struck between the rights of employees and employers under the Fair Work Act 2009. The court's decision allowed the ballot to proceed, affirming the importance of protected industrial action in the Australian industrial relations framework.

No specific orders were made beyond the decision to allow the ballot to proceed, as the court found that the potential disruption was not severe enough to warrant an injunction. The decision reaffirmed the balance between the rights of employees and employers in the context of protected industrial action.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established