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

[2022] FWC 1418

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

(B2022/532)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 JUNE 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 (the Respondent).

On 6 June 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 PR742349.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking a protected action ballot order in relation to certain employees of Downer EDI Rail Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, as the union aimed to conduct a ballot for protected action. The union claimed that it had been genuinely attempting to reach an agreement with the employer, Downer EDI Rail Pty Ltd, but had been unable to do so. The employer did not object to the application, leading the Deputy President to determine the matter on the papers without holding a hearing.

The primary legal issue for the court to decide was whether the union had met the requirements for a protected action ballot under section 443(1) of the Fair Work Act. This involved assessing the union's declaration, which detailed the steps taken during bargaining with the employer and confirming the union's genuine efforts to reach an agreement. The court had to determine whether the union had fulfilled the notification time requirement and satisfied the conditions for a ballot under the Act.

The Deputy President found that the union had provided sufficient evidence of its genuine bargaining efforts and the existence of a notification time. The declaration from Ms Chelsea Hill of the Applicant outlined the union's steps in bargaining with Downer EDI Rail Pty Ltd and confirmed the union's commitment to reaching an agreement. The Deputy President was satisfied that the union had met the requirements for a ballot under section 443(1) of the Fair Work Act, and therefore, granted the application for a protected action ballot order.

An order was issued in PR742349, allowing the union to proceed with the protected action ballot as per the application. The decision highlights the importance of providing evidence of genuine bargaining efforts and meeting the notification time requirement when seeking a ballot for protected action under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established