| [2025] FWC 3145 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU)
v
Downer EDI Engineering Power Pty Ltd
(B2025/1602)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 21 OCTOBER 2025 |
Proposed protected action ballot of employees of Downer EDI Engineering Power Pty Ltd -non-AEC ballot agent electronic voting
This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU or 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 Engineering Power Pty Ltd (Downer EDI Engineering or Employer).
I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.
On 20 October 2025, the Commission was advised that the Employer, in effect did not object to the Application.
In the circumstances, I have decided to grant leave to amend the Application and determine the matter on the papers without holding a hearing.
On the basis of the material before me, including the declaration of Tim Ferguson, Organiser, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Downer EDI Engineering, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.
The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 4 November 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR792818.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
[1] B2025/1605.
[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.
Printed by authority of the Commonwealth Government Printer
<PR792819>
- AGLC
- “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Downer EDI Engineering Power Pty Ltd [2025] FWC 3145
- Case
- [2025] FWC 3145
- Decision Date
CaseChat Overview and Summary
The legal issues that the court needed to address included whether the AMWU had fulfilled the requirements under section 443 of the Act, including the notification time for the proposed agreement, and whether the steps taken by the AMWU in bargaining with the employer demonstrated a genuine attempt to reach an agreement. Another issue was whether the proposed ballot agent, Fair Vote Services Pty Ltd, was an eligible agent under section 468A of the Act and whether the closing date for voting, as determined by the Commission, was appropriate. Additionally, the court needed to decide on the ballot period for the purpose of section 448A(2) of the Act and to schedule the compulsory conciliation conference.
The Deputy President concluded that the AMWU had satisfied the requirements in section 443(1) of the Act, as evidenced by the declaration of Tim Ferguson, the AMWU Organiser, stating that the union had genuinely tried to reach an agreement with the employer. The court determined that the proposed ballot agent, Fair Vote Services Pty Ltd, was an eligible agent under section 468A of the Act and authorized to conduct the ballot. The closing date for voting was set at 4 November 2025, effectively 10 working days from the making of the order. The court also issued an order for a compulsory conciliation conference to be conducted by another member of the Commission, requiring the attendance of all bargaining representatives. Directions were likely to be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
The final orders included granting leave to amend the application, determining the matter on the papers, authorizing the AMWU to conduct the ballot, setting the closing date for voting, and scheduling the compulsory conciliation conference. The matter was assigned to another member of the Commission for the conciliation conference, and the parties were required to attend ready for meaningful negotiations.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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