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

[2025] FWC 3151

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

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

Downer EDI Engineering Power Pty Ltd

(B2025/1605)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 21 OCTOBER 2025

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

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU 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 Engineering Power Pty Ltd (Downer EDI Engineering or Employer).

I note that the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers’ Union (AMWU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

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 grant leave to amend the Application and determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Bradley McDougall, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Downer EDI Engineering, 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 Vero Engagement and Voting Solutions Pty Ltd (Vero Voting). Vero Voting 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.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR792829.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. 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 WRIGHT

[1] B2025/1602.

[2] 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 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) sought a protected action ballot order against Downer EDI Engineering Power Pty Ltd under section 437 of the Fair Work Act 2009. The union aimed to conduct a ballot to determine whether its members would support protected industrial action in relation to a proposed enterprise agreement. The employer did not object to the application, leading the Fair Work Commission to decide the matter on the papers without a hearing. The Commission was satisfied that the union had genuinely tried to reach an agreement with the employer and that all legal requirements for the ballot had been met.

The primary legal issue before the Commission was whether the union met the statutory requirements to conduct a protected action ballot. The union had to demonstrate that it had been genuinely trying to reach an agreement with the employer and that there was a notification time for the proposed agreement. Additionally, the Commission needed to confirm that the ballot agent, Vero Engagement and Voting Solutions Pty Ltd, was eligible and authorised under the Act to conduct the ballot. The union provided a declaration from its organiser detailing the bargaining process and the steps taken to reach an agreement, which the Commission accepted as sufficient evidence.

The Fair Work Commission found that the union had satisfied the statutory requirements for a protected action ballot. The Deputy President granted the application and set the closing date for voting as 4 November 2025, which was 10 working days from the date of the order. The Commission also determined that the ballot period would commence from the date of the order. Furthermore, the matter was assigned to another Commission member to conduct the compulsory conciliation conference, which would involve all bargaining representatives. Directions were likely to be issued to ensure meaningful negotiations at the conference. The Commission issued an order to facilitate the ballot and the conciliation conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established