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

[2022] FWC 1420

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

(B2022/534)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 JUNE 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 (the Respondent).

On 6 June 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 Raoul Wainwright 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 PR742353.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) seeking a protected action ballot order in relation to certain employees of Downer EDI Rail Pty Ltd. The AMWU applied under section 437 of the Fair Work Act 2009 for a protected action ballot order. The dispute centred on the proposed industrial action by the employees, and the need to hold a ballot to ascertain the employees' support for the proposed action. The matter was brought before the Deputy President, Clancy, in Melbourne.

The primary legal issue the court had to address was whether the conditions set forth in section 443(1) of the Fair Work Act 2009 were met for the AMWU to hold a ballot for protected action. This included determining if the notification period required by law had elapsed and if the union had genuinely attempted to reach an agreement with Downer EDI Rail Pty Ltd. The court also needed to consider whether the AMWU had followed the necessary procedural requirements in applying for the ballot.

After reviewing the material submitted, including the declaration by Mr. Raoul Wainwright of the AMWU, the Deputy President was satisfied that the union had genuinely attempted to reach an agreement with Downer EDI Rail Pty Ltd and that the notification period required by the Act had passed. The court found that the AMWU had met all the requirements for holding a ballot for protected action. Consequently, the court determined the matter on the papers without the need for a hearing, as Downer EDI Rail Pty Ltd did not object to the application.

The Fair Work Commission issued an order permitting the AMWU to hold a protected action ballot among the employees of Downer EDI Rail Pty Ltd. This decision allowed the union to proceed with the ballot, subject to the compliance with the requirements of the Fair Work Act 2009.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established