Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Downer EDI Engineering Electrical Pty Ltd

[2022] FWC 2942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Downer EDI Engineering Electrical Pty Ltd

(B2022/1655)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 NOVEMBER 2022

Proposed protected action ballot of employees of Downer EDI Engineering Electrical Pty Ltd

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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 Engineering Electrical Pty Ltd (Respondent).

On 4 November 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Stephen Bravo of the Applicant declared on 2 November 2022, 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.

An Order has been separately issued in PR747651.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) seeking a protected action ballot order in relation to certain employees of Downer EDI Engineering Electrical Pty Ltd (the Respondent). The application was made under section 437 of the Fair Work Act 2009 (Cth) and pertained to the Applicant's proposal to hold a ballot among the employees for potential protected industrial action. The Respondent did not oppose the application, and the matter was determined on the basis of the provided documentation without the need for a hearing.

The primary legal issue the FWC had to address was whether the statutory requirements for a protected action ballot were satisfied. This included verifying that the Applicant had genuinely tried to reach an agreement with the Respondent and whether the notification period stipulated in section 443(1) of the Act had been met. The Applicant needed to demonstrate that it had engaged in good faith bargaining with the Respondent and that the proposed industrial action was a result of the inability to reach an agreement on certain terms or conditions of employment.

The FWC, after reviewing the statutory declaration of Stephen Bravo from the Applicant and other submitted materials, concluded that the conditions for a protected action ballot were met. The Applicant's declaration outlined the steps taken in the bargaining process with the Respondent and confirmed the union's genuine efforts to reach an agreement. Given that the Respondent did not contest the application and that the statutory declaration supported the Applicant's position, the FWC was satisfied that the requirements for proceeding with the ballot were fulfilled. Consequently, the FWC issued an order permitting the protected action ballot to proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established