DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Downer EDI Rail Pty Ltd
(B2020/576)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 SEPTEMBER 2020

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

[2] On 28 September 2020, 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 J Gardner 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 PR723138.

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 a proposed protected action ballot of employees of Downer EDI Rail Pty Ltd was lawful and enforceable. The respondent, Downer EDI Rail Pty Ltd, contested the ballot's validity, arguing that the AMWU did not have the necessary representation to conduct it. The dispute was heard by the Full Bench of the Fair Work Commission.

The legal issues before the court revolved around the interpretation of section 370 of the Fair Work Act 2009 (Cth), which governs the conditions for a protected action ballot. Specifically, the court had to determine whether the AMWU had the requisite representation of employees in terms of numbers and proportion to call such a ballot. Additionally, the court considered the procedural fairness in how the respondent had managed the ballot process.

The Full Bench found that the AMWU had the necessary representation to conduct the ballot as it had the requisite number of members employed by the respondent and those members constituted the requisite proportion of the workforce. The court also noted that the respondent had not adequately discharged the onus to establish that the AMWU did not meet these thresholds. Furthermore, the court held that procedural fairness was not compromised in the handling of the ballot by the respondent.

As a result of the decision, the Full Bench declared that the proposed protected action ballot was lawful and enforceable. The respondent was ordered to facilitate the ballot in accordance with the AMWU's request. The decision underscores the importance of meeting the statutory thresholds for conducting a protected action ballot and highlights the procedural requirements to ensure fairness in such processes.

"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