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

[2025] FWC 3153

FAIR WORK COMMISSION

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

(B2025/1609)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 21 OCTOBER 2025

Proposed protected action ballot of employees of Downer EDI Rail Pty Ltd - non-AEC ballot agent electronic voting

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU or 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 (Downer EDI Rail or Employer).

On 20 October 2025, the Commission was advised that the Employer, in effect, 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 Tim Jackson, Organiser, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Downer EDI Rail, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 4 November 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR792835.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Downer EDI Rail Pty Ltd. The AMWU sought to conduct a ballot for protected action, and Downer EDI Rail did not object to the application. The Commission determined the matter on the submitted documents without a hearing. The AMWU provided a declaration by Tim Jackson, an Organiser, detailing the union's efforts to reach an agreement with the employer and confirming its genuine attempts to do so. The ballot was to be conducted by Fair Vote Services Pty Ltd, an approved ballot agent.

The key legal issue for the Commission was whether the AMWU had met the requirements under section 443(1) of the Fair Work Act to conduct the ballot. The Commission needed to assess if there was a notification time for the proposed agreement and whether the union had genuinely attempted to reach an agreement with the employer. Additionally, the Commission had to determine the closing date for the voting period, as specified in section 443(3)(c) of the Act.

The Deputy President of the FWC found that the AMWU had satisfied the conditions for a protected action ballot under section 443(1) of the Act. The union had indeed been genuinely trying to reach an agreement with Downer EDI Rail. Given the employer's lack of objection, the Commission concluded that the requirements for a ballot were met. The Deputy President set the closing date for voting as 4 November 2025, which was effectively 10 working days from the making of the order and aligned with the period requested in the application. The matter was assigned to another member of the Commission for a compulsory conciliation conference, with an order issued to require the attendance of all bargaining representatives.

The Fair Work Commission issued an order for the ballot to be conducted by Fair Vote Services Pty Ltd. The closing date for voting was set at 4 November 2025. This decision also established the ballot period for the purpose of section 448A(2) of the Act. The matter was assigned to another member of the Commission to conduct the compulsory conciliation conference, with orders issued to ensure that all bargaining representatives attend the conference prepared for meaningful negotiations.

“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