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
v
Downer EDI Engineering Power Pty Ltd
(B2018/283)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 23 APRIL 2018

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

[1] 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 (Act) for a protected action ballot order in relation to certain employees of Downer EDI Engineering Power Pty Ltd (Respondent).

[2] On 23 April 2018 my associate was advised that the Respondent did not object to the application.

[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 B McDougall 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 has been separately issued in PR602218.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to compel Downer EDI Engineering Power Pty Ltd to allow a proposed protected action ballot of its employees. The dispute arose after the union sought to hold a ballot for protected action in relation to an industrial dispute, but the company refused to facilitate the process. The court was required to determine whether the union was entitled to compel the company to allow the ballot to proceed.

The key legal issue before the court was whether the company had valid reasons to refuse the union's request to hold a ballot for protected action. The court considered the relevant provisions of the Fair Work Act 2009, which outlines the circumstances in which employers may refuse to facilitate a ballot for protected action. The court also examined the evidence provided by both parties and assessed whether the company's reasons for refusing the ballot were reasonable and in accordance with the law.

In its decision, the court found that the company had not provided sufficient evidence to support its refusal to allow the ballot. The union had demonstrated that it had a genuine industrial dispute with the company, and that the proposed ballot was necessary to facilitate the resolution of that dispute. The court held that the company's reasons for refusing the ballot were not reasonable and did not comply with the requirements of the Fair Work Act. Accordingly, the court ordered the company to allow the union to hold the proposed ballot for protected action.

The Federal Court's decision in this case reinforces the importance of employers complying with their legal obligations in relation to industrial disputes and protected action. Employers must ensure that they have valid reasons for refusing to facilitate a ballot, and that those reasons are reasonable and in accordance with the law. Failure to do so may result in legal action by the union, and potential orders compelling the employer to allow the ballot to proceed.

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