“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Downer EDI Engineering Power Pty Ltd

[2022] FWC 1378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

Downer EDI Engineering Power Pty Ltd

(B2022/501)

DEPUTY PRESIDENT DEAN

CANBERRA, 1 JUNE 2022

Proposed protected action ballot of employees of Downer EDI Engineering Power Pty Ltd.

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Downer EDI Engineering Power Pty Ltd (Respondent).

On 30 May 2022, the Respondent wrote to the Commission indicating that it does not oppose the making of the order, however it objects to the order in the form currently sought by the AMWU. The Respondent subsequently withdrew its opposition following the filing of an amended application and draft order by the AMWU.

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

On the basis of the material before me, including the declaration of Fergal Eiffe of the AMWU made on 27 May 2022, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR742210.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of the Australian Manufacturing Workers’ Union (AMWU) against Downer EDI Engineering Power Pty Ltd involved an application for a protected action ballot order. The AMWU sought the order under section 437 of the Fair Work Act 2009 in relation to certain employees of Downer EDI Engineering Power Pty Ltd. The application was made due to the union's efforts to reach an agreement with the company, and it was determined by the Fair Work Commission. Initially, Downer EDI Engineering Power Pty Ltd indicated it did not oppose the making of the order but objected to its form as currently proposed by the AMWU. However, the company later withdrew its opposition following the filing of an amended application and draft order by the AMWU.

The primary legal issues addressed by the court pertained to the conditions under which the AMWU could proceed with a protected action ballot. This included verifying that the union had genuinely attempted to negotiate with the respondent and ensuring that the notification time for the proposed agreement was met. The court also had to consider the requirements outlined in section 443(1) of the Fair Work Act 2009, which pertains to the process for a protected action ballot. The Deputy President Dean was tasked with determining whether the AMWU had satisfied these conditions based on the evidence provided.

The court found that the AMWU had genuinely tried to reach an agreement with Downer EDI Engineering Power Pty Ltd, as evidenced by the declaration of Fergal Eiffe, an AMWU representative, dated 27 May 2022. This declaration detailed the steps taken by the union in bargaining with the company. Additionally, the court was satisfied that the notification time for the proposed agreement had been met and that all requirements under section 443(1) of the Act had been fulfilled. Consequently, the Deputy President issued an order permitting the AMWU to proceed with the protected action ballot as amended. No further hearing was deemed necessary given the circumstances and the company's withdrawal of its opposition.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established