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

[2022] FWC 2883

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)
v

Downer EDI Rail Pty Ltd

(B2022/1632)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 OCTOBER 2022

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 27 October 2022, my Associate was advised that the Respondent did not object to the application.

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 Mr Andrew Bonelloof 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 PR747291.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers' Union (AMWU) applied for an order to conduct a protected action ballot of employees of Downer EDI Rail Pty Ltd. The dispute centered on the ability of the AMWU to hold a ballot to organise a protected industrial action, which requires specific conditions to be met under the Fair Work Act 2009. The AMWU argued that it had fulfilled the prerequisites for holding such a ballot, including a period of good-faith bargaining and the provision of necessary information to the employer.

The primary legal issue before the Deputy President was whether the AMWU had satisfied the requirements of section 437 of the Fair Work Act to hold a protected action ballot. This involved assessing whether the union had genuinely attempted to reach an agreement with Downer EDI Rail and whether the notification period mandated by the Act had been observed. The Deputy President also had to consider if the union had provided sufficient information to the employer to facilitate effective bargaining.

Upon reviewing the declaration from the AMWU and other relevant documentation, the Deputy President found that the union had indeed engaged in good-faith negotiations with the employer and had met the notification period as required by the Act. The Deputy President was satisfied that the AMWU had taken all necessary steps to comply with the legislative provisions for holding a protected action ballot. Consequently, the application was approved, and an order was issued in separate proceedings.

The final orders confirmed the approval of the AMWU's application to hold a protected action ballot, reflecting the Deputy President's determination that the union had met all necessary conditions under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established