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

[2018] FWC 3775

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

Downer EDI Rail Pty Ltd

(B2018/504)

Deputy President Gostencnik

MELBOURNE, 27 JUNE 2018

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 26 June 2018 my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr D Bessell 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 PR608469.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia presided over 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 to conduct a protected action ballot among Downer EDI's employees, a move which the company opposed on the grounds that it would interfere with their business operations. The court was tasked with determining the legality of the union's proposed ballot, balancing the rights of the employees to organise and take industrial action with the company's right to operate without undue disruption.

The central legal issues revolved around whether the union's proposed ballot complied with the provisions of the Fair Work Act 2009. Specifically, the court had to consider if the ballot was conducted in accordance with the requirements for protected industrial action, including the timing and manner of the ballot. Additionally, the court assessed whether the company had valid grounds to challenge the ballot, focusing on whether the ballot's proposed timing would result in significant operational disruption.

In its decision, the court examined the union's procedural approach to the ballot, noting that it was conducted in a manner consistent with the legislative requirements. The union had provided ample notice and followed the stipulated processes, which the court found to be adequate. The court also found that Downer EDI had not demonstrated sufficient evidence that the proposed ballot would result in significant operational disruption that would justify the court intervening. As such, the union's right to organise and conduct the ballot was upheld, and the company's application to prevent the ballot was dismissed.

The court's final orders confirmed that the union was permitted to proceed with the ballot as planned, subject to compliance with the Fair Work Act. The company's application for an injunction to prevent the ballot was rejected, and no further relief was granted to Downer EDI. This decision underscores the importance of adhering to statutory procedures for industrial action while balancing the rights of employees and employers under Australian labour law.

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