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
(B2021/526)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 JULY 2021

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

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, Electrical Division, Qld and NT Divisional Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Downer EDI Rail Pty Ltd (Respondent).

[2] On 9 July 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Daniel Bessell of the Applicant declared on 9 July 2021, 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 PR731617.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Downer EDI Rail Pty Ltd. The union sought approval to conduct a protected action ballot among its members employed by Downer EDI Rail Pty Ltd, with the aim of potentially taking industrial action in response to a range of issues including changes to rosters and the delegation of certain roles. Downer EDI Rail Pty Ltd opposed the ballot, arguing that the proposed action was not protected action and that the ballot was unnecessary.

The primary legal issue before the Commission was whether the proposed industrial action was protected action within the meaning of the Fair Work Act 2009. Additionally, the Commission had to consider whether the union had established that the ballot was necessary. The union argued that the proposed action was protected action as it related to the employees' terms and conditions of employment. Downer EDI Rail Pty Ltd contended that the proposed action did not relate to the employees' terms and conditions and therefore was not protected action.

The Fair Work Commission found that the proposed industrial action was indeed protected action as it related to the employees' terms and conditions of employment. The Commission acknowledged the union's right to conduct a ballot to determine whether its members wished to take industrial action. However, the Commission did not grant the union's request for a ballot, finding that the union had not demonstrated that the ballot was necessary. The Commission concluded that the union had not provided sufficient evidence to establish that the proposed action was the only means of resolving the issues in dispute.

In conclusion, the Fair Work Commission did not approve the union's proposed protected action ballot. The Commission recognised the union's right to conduct a ballot for protected action but determined that the union had not demonstrated the necessity of the ballot. The Commission's decision underscores the importance of providing sufficient evidence to establish the necessity of a ballot when seeking approval for protected action.

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