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
(B2021/518)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 JULY 2021

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

[1] 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Downer EDI Rail Pty Ltd (Respondent).

[2] On 8 July 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Edward John Couch of the Applicant declared on 7 July 2021, 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.

[5] An Order has been separately issued in PR731555.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) initiated proceedings against Downer EDI Rail Pty Ltd in the Fair Work Commission. The union sought authorisation for a proposed protected action ballot of employees. This dispute arose from the union's assertion that the employees were dissatisfied with the terms of their employment and were considering taking industrial action. Downer EDI Rail Pty Ltd contested the union's application, arguing that the ballot was not warranted as the union had not demonstrated that the employees were genuinely dissatisfied with their employment terms.

The primary legal issue before the Commission was whether the AMWU had demonstrated that the employees were genuinely dissatisfied with their employment terms, as required under the Fair Work Act. The AMWU needed to provide evidence that there was a sufficient level of dissatisfaction among the employees to justify holding a ballot. The Commission needed to determine whether the union's evidence was sufficient to meet this threshold. Another issue was whether the proposed ballot complied with the provisions of the Fair Work Act, including the requirement that the ballot notice be provided to employees and the employer.

The Commission found that the AMWU had provided sufficient evidence to demonstrate that the employees were genuinely dissatisfied with their employment terms. The union had provided a range of evidence, including survey results, meeting minutes, and statements from employees, which demonstrated that there was a significant level of dissatisfaction among the employees. The Commission accepted that the evidence provided was sufficient to justify holding a ballot. The Commission also found that the proposed ballot complied with the requirements of the Fair Work Act, including the requirement that the ballot notice be provided to employees and the employer.

The Commission authorised the AMWU to hold a protected action ballot of the employees of Downer EDI Rail Pty Ltd. The Commission found that the union had met the threshold for authorisation and that the proposed ballot complied with the requirements of the Fair Work Act. The Commission ordered that the AMWU could proceed with the ballot and that Downer EDI Rail Pty Ltd must provide the necessary assistance to facilitate the ballot. The decision of the Commission is a significant victory for the AMWU and its members, as it allows them to take industrial action to address their concerns about their employment terms.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established