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
EDI Rail PPP Maintenance Pty Ltd
(B2019/1317)

DEPUTY PRESIDENT DEAN

SYDNEY, 18 NOVEMBER 2019

Proposed protected action ballot of employees of EDI Rail PPP Maintenance 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) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of EDI Rail PPP Maintenance Pty Ltd (Respondent).

[2] On 18 November 2019, 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 Daniel White of the AMWU declared on 15 November 2019, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR714368.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot of employees of EDI Rail PPP Maintenance Pty Ltd, an entity involved in the maintenance of rail infrastructure. EDI Rail PPP Maintenance Pty Ltd opposed the ballot on the grounds that the AMWU had not demonstrated that the proposed industrial action was protected action. The matter was heard by the Fair Work Commission (FWC), which was tasked with determining whether the AMWU's proposed ballot constituted protected action under the Fair Work Act 2009 (Cth). The central legal issue before the FWC was whether the AMWU had adequately demonstrated that the proposed industrial action was protected action, as required by section 389 of the Fair Work Act. The FWC had to consider whether the proposed action was in pursuit of an industrial claim or matter of industrial dispute, and whether it was in accordance with the Act.

The FWC concluded that the AMWU had not provided sufficient evidence to demonstrate that the proposed action was protected action. The AMWU argued that the proposed action was a protected industrial action, as it related to a matter of industrial dispute. However, the FWC found that the AMWU had not provided adequate evidence to establish that the proposed action was in pursuit of an industrial claim or related to a matter of industrial dispute. The FWC also noted that the AMWU had not provided evidence that the proposed action was in accordance with the Act, including that it had given the required notice to EDI Rail PPP Maintenance Pty Ltd. The FWC therefore rejected the AMWU's application to conduct the proposed ballot.

As a result of the FWC's decision, the AMWU was not permitted to conduct the proposed ballot of EDI Rail PPP Maintenance Pty Ltd's employees. The FWC's decision highlights the importance of providing sufficient evidence to demonstrate that proposed industrial action is protected action, and that it is in accordance with the Fair Work Act. The decision also emphasises the need for unions to comply with the procedural requirements of the Act when seeking to conduct protected action. The FWC did not make any orders, as the AMWU's application to conduct the proposed ballot was dismissed.

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