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

[2022] FWC 2882

FAIR WORK COMMISSION

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 Rail Pty Ltd

(B2022/1630)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 OCTOBER 2022

Proposed protected action ballot of employees of Downer EDI Rail Pty Ltd.

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 Rail Pty Ltd (Respondent).

On 27 October 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Ms Chelsea Hill 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.

An order has been separately issued in PR747289.

DEPUTY PRESIDENT

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 (Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Downer EDI Rail Pty Ltd (Respondent). The dispute pertains to a proposed protected action ballot which the Applicant sought to conduct among its members who are employees of the Respondent. Downer EDI Rail Pty Ltd did not object to the application, and the Deputy President, Clancy, decided to determine the matter on the papers without the need for a hearing. The primary legal issue the court was required to decide was whether the Applicant had satisfied the requirements under section 437 of the Fair Work Act to hold a protected action ballot, specifically if there was a notification time in relation to the proposed agreement and if the requirements in section 443(1) of the Act had been met. The court examined the declaration of Ms Chelsea Hill of the Applicant, which detailed the steps taken by the union in bargaining with the Respondent and confirmed that the union had been genuinely trying to reach agreement with the Respondent. Based on the evidence, the Deputy President was satisfied that the notification time in relation to the proposed agreement existed and that the requirements in section 443(1) of the Act had been met. Therefore, the court granted the Applicant's application for a protected action ballot order. The Deputy President also noted that an order had been separately issued in PR747289.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established