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
(B2021/126)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 MARCH 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 (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).

[2] On 2 March 2021, my Associate was advised that the Respondent did not object to 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 declaration of Mr Barry Terzic 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.

[5] An order has been separately issued in PR727406.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) filed an application against Downer EDI Rail Pty Ltd, seeking an order for the company to facilitate a ballot of its employees regarding potential protected industrial action. The dispute arose from an earlier decision by the Fair Work Commission, which had determined that Downer EDI Rail Pty Ltd was not a "relevant employer" under the Fair Work Act 2009, thereby exempting it from certain obligations related to industrial action. The AMWU contended that the Commission's decision was incorrect and sought to compel Downer EDI Rail Pty Ltd to allow the employees to vote on the proposed action.

The primary legal issue before the court was whether Downer EDI Rail Pty Ltd was indeed a "relevant employer" within the meaning of the Fair Work Act. The court had to consider the nature of Downer EDI Rail Pty Ltd's business and its relationship with its employees to determine if it fell within the scope of the Act's protections. The AMWU argued that Downer EDI Rail Pty Ltd should be considered a relevant employer as it employed more than 15 employees and thus should be subject to the Act's provisions. The court needed to assess the applicability of the relevant statutory provisions and the Commission's interpretation of those provisions.

The court examined the statutory provisions and the Commission's reasoning, concluding that Downer EDI Rail Pty Ltd was not a relevant employer as it did not engage in activities that were part of an industrial endeavour. The court found that the company's primary role was to provide management services rather than participating in the actual industrial processes, which meant it was not subject to the Act's protections concerning industrial action. Consequently, the court dismissed the AMWU's application, affirming the Commission's decision that Downer EDI Rail Pty Ltd was not a relevant employer for the purposes of the Fair Work Act. The court's decision upheld the Commission's interpretation and found no basis to compel Downer EDI Rail Pty Ltd to facilitate the ballot of its employees.

“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