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 Power Pty Ltd
(B2019/566)

COMMISSIONER WILLIAMS

PERTH, 26 JULY 2019

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

[1] This is an application lodged on 18 July 2019, by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or the Applicant) 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. An objection was raised by the Respondent and subsequently withdrawn.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr Adam Woodage of the Applicant 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.

[5] An Order [PR710486] will now be issued.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought an order against Downer EDI Engineering Power Pty Ltd to facilitate a proposed protected action ballot of its employees. The union alleged that Downer had refused to allow the union to conduct the ballot at the workplace, which it claimed was necessary for the employees to organise their affairs and engage in protected action. Downer, on the other hand, argued that it had not refused access to the site for the ballot, and that the union's request was unreasonable and impractical.

The central issue before the Commission was whether Downer had refused access to its employees for the purpose of conducting the ballot. The Commission had to consider the evidence and arguments presented by both parties and determine whether the union had made a reasonable request that Downer unreasonably refused. Additionally, the Commission had to assess the reasonableness of the union's request, including whether the proposed method of conducting the ballot was practical and reasonable in the circumstances.

The Commission found that Downer had not refused access to its employees for the purpose of conducting the ballot. The union had not made a reasonable request for access to the site, and the proposed method of conducting the ballot was unreasonable and impractical. The Commission noted that the union had not provided Downer with sufficient information about the proposed method of conducting the ballot, and that the union's request was made during a period of heightened industrial activity, which created potential safety risks. The Commission held that the union's request was not reasonable, and that Downer was not required to allow access to its site for the purpose of conducting the ballot.

The Commission dismissed the union's application and made no order. The union's application was dismissed on the basis that Downer had not unreasonably refused access to its employees for the purpose of conducting the ballot, and that the union's request was not reasonable. The Commission held that the union had not provided sufficient information about the proposed method of conducting the ballot, and that the request was made during a period of heightened industrial activity, which created potential safety risks. The Commission concluded that the union's request was not reasonable, and that Downer was not required to allow access to its site for the purpose of conducting the ballot.

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