DECISION

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

Australian Workers’ Union
v
Downer EDI Works Pty Ltd
(IA2018-4579)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 AUGUST 2018

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

[1] 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).

[2] On 22 August 2018, 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 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 PR620041.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Downer EDI Works Pty Ltd. The application was made following unsuccessful negotiations for a new enterprise agreement. Downer EDI Works Pty Ltd did not object to the application, resulting in the decision being made on the papers without a hearing. The Deputy President of the Commission determined that the requirements under section 443(1) of the Act had been met, given the evidence of the union's genuine efforts to reach an agreement with the employer.

The primary legal issue before the Fair Work Commission was whether the application met the statutory requirements for a protected action ballot order. This included verifying the notification time for the proposed agreement and ensuring that the union had genuinely attempted to reach an agreement with the employer. The union provided a statutory declaration from Mr N Blackford, outlining the steps taken in bargaining with the employer and confirming the union's genuine efforts.

In deciding the matter, the Deputy President reviewed the material presented, including the statutory declaration and evidence of the union's bargaining efforts. The declaration substantiated that the union had followed the necessary procedures and was genuinely trying to reach an agreement. As the employer did not object to the application, the Deputy President was satisfied that all requirements were met. Consequently, the Deputy President issued an order permitting the union to conduct a ballot for protected action.

The Fair Work Commission issued an order allowing the Australian Workers' Union to proceed with a ballot for protected action. The order was issued separately as PR620041. This decision underscores the importance of genuine bargaining efforts and compliance with statutory requirements for protected industrial action under the Fair Work Act. The union's application was granted based on the evidence provided and the absence of objection from the employer.

Australian Workers’ Union v Downer EDI Works 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