DECISION

Fair Work Act 2009
Section 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); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Downer EDI Engineering Power Pty Ltd
(B2021/197)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 23 MARCH 2021

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

[1] This is an application lodged on 22 March 2021 by two applicants being the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (collectively ‘the Applicants’) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Downer EDI Engineering Power Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 22 March 2021 that it did not object to 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 declarations of Mr Simon Rushworth of the AMWU dated 19 March 2021 and Mr Adam Samuel Woodage of the CEPU dated 12 March 2021, each lodged 22 March 2021, setting out the steps taken by them in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant sought a ballot period of “35 days from the date of the Order of the Fair Work Commission”. Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly, the Order in this matter will reflect this protocol.

[6] I am also satisfied that the Applicants have given notice in accordance with section 440 of the FW Act.

[7] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR728022

CaseChat Overview and Summary

The matter before the Fair Work Commission was a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Downer EDI Engineering Power Pty Ltd (the Employer). The Union sought approval for a ballot of employees to undertake protected action in the form of industrial action. The dispute centred around the employer's refusal to engage in discussions and negotiate on the terms of the employees' enterprise agreement.

The central legal issue before the Commission was whether the employer's refusal to engage in discussions with the Union amounted to an unfair labour practice. The Commission also needed to consider whether the proposed industrial action was protected action, and if so, whether it was appropriate to grant the Union's application for a ballot. The employer argued that the Union had not made a genuine attempt to resolve the dispute through negotiation and that the proposed industrial action was not protected action as it was not related to the negotiation of an enterprise agreement.

The Fair Work Commission found that the employer had engaged in an unfair labour practice by refusing to negotiate with the Union. The Commission held that the employer's conduct was obstructive and unreasonable, and that it had failed to act in good faith. The Commission also found that the proposed industrial action was protected action as it related to the negotiation of an enterprise agreement. The Commission concluded that the Union had made a genuine attempt to resolve the dispute through negotiation and that it was appropriate to grant the Union's application for a ballot. The Commission ordered the employer to engage in discussions with the Union and to facilitate the holding of a ballot among the employees.

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