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

The matter involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order (PABO) under s 437 of the Fair Work Act 2009 (Cth) (the Act). The CEPU sought to have its members vote on various proposed industrial actions in support of an enterprise agreement being negotiated with Downer EDI Engineering Electrical Pty Ltd (Downer). The court was required to determine whether the questions proposed for the ballot were specific enough to meet the requirements of s 443(3)(d) of the Act, which requires the nature of the proposed industrial action to be specified in the ballot questions. The court held that the questions in the ballot were not sufficiently specific to meet the requirements of the Act, and thus dismissed the application in its entirety. The court further held that the requirements for a PABO had been met, but that questions 8 and 9 had to be removed from the ballot as they did not adequately specify the nature of the proposed industrial action.

In reaching its decision, the court considered the legislative framework and the relevant case law. The court found that the definition of 'industrial action' in s 19 of the Act was relevant to determining whether the questions in the ballot met the requirements of s 443(3)(d) of the Act. The court considered the Full Bench decision in Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union and the decision of the Federal Court in Ambulance Victoria v United Voice, and held that the questions in the ballot did not adequately specify the nature of the proposed industrial action. The court held that the questions were too vague and did not provide enough information for employees to make an informed choice on whether to authorise the nature of the proposed industrial action specified in the question. The court concluded that the requirements for the making of a PABO had been met, but that questions 8 and 9 had to be removed from the ballot as they did not describe the nature of the proposed industrial action in such a way that employees are capable of responding to it. The court further held that s 599 of the Act did not require it to make a decision in relation to the application in the terms applied for.