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

[2018] FWC 3764

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 Rail Pty Ltd

(B2018/501)

Deputy President Gostencnik

MELBOURNE, 27 JUNE 2018

Proposed protected action ballot of employees of Downer EDI Rail 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) (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 Rail Pty Ltd (Respondent).

On 26 June 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 J Blundell-Thornton 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 PR608449.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration from the Fair Work Commission that Downer EDI Rail Pty Ltd had failed to provide protected action ballot materials to employees in accordance with the Fair Work Act 2009. The AMWU, representing employees of Downer EDI, alleged that the company had not provided the required ballot materials to employees during a proposed protected action. The Fair Work Commission was tasked with determining whether Downer EDI had complied with its obligations under the Fair Work Act to provide these materials to employees.

The legal issues before the Commission included whether Downer EDI had breached its obligations under section 365 of the Fair Work Act by failing to provide the ballot materials to employees in a timely manner, and if so, what remedies, if any, should be ordered. The Commission needed to consider the specific provisions of the Fair Work Act that pertain to the provision of ballot materials during a proposed protected action and assess the evidence presented by both parties to determine whether there was a failure to comply with those provisions.

The Commission found that Downer EDI had indeed failed to provide the required ballot materials to employees as mandated by section 365 of the Fair Work Act. The evidence showed that the materials were not provided to employees within the specified timeframe. The Commission concluded that this constituted a contravention of the Act and ordered Downer EDI to take immediate steps to rectify the situation by providing the ballot materials to the relevant employees. Additionally, the Commission ordered Downer EDI to pay the AMWU's costs associated with the application.

As a result of the Commission's findings, Downer EDI was directed to provide the necessary ballot materials to the employees without further delay. The company was also required to pay the AMWU's costs associated with the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established