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

[2022] FWC 1169

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

(B2022/435)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 MAY 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 13 May 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 PR741611.

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 (the Applicant) seeking an order for a protected action ballot for certain employees of Downer EDI Rail Pty Ltd (the Respondent). The application was made under section 437 of the Fair Work Act 2009, which provides for such orders to be granted where specific conditions are met. The Respondent did not object to the application, leading to the decision being made on the papers without a hearing.

The legal issues before the Court were whether the notification time for the proposed agreement had been met and if the requirements of section 443(1) of the Act were satisfied. The Applicant had to demonstrate that it had been genuinely trying to reach an agreement with the Respondent and that the necessary notification period had elapsed. The Court was required to examine the declaration of Ms Chelsea Hill of the Applicant, which outlined the bargaining steps taken and the Applicant's efforts to reach an agreement with the Respondent.

Upon reviewing the material presented, including Ms Hill's declaration and the Applicant's efforts to negotiate with the Respondent, the Deputy President was satisfied that the notification time had elapsed and that the requirements under section 443(1) of the Act had been met. Consequently, the application was successful, and an order was issued in PR741611, allowing the Applicant to proceed with the protected action ballot.

The Court's decision was based on the Applicant's declaration and the absence of objections from the Respondent. The Deputy President concluded that the conditions for a protected action ballot order were fulfilled, and an order was made accordingly. This ruling enables the Applicant to conduct a ballot among the specified employees of Downer EDI Rail Pty Ltd, as per the provisions of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established