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 T/A Downer
(B2021/125)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 MARCH 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” known as the Electrical Trades Union (ETU) (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).

[2] On 2 March 2021, my Associate was advised that the Respondent did not object to 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 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.

[5] An order has been separately issued in PR727405.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute before the Fair Work Commission was between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Downer EDI Rail Pty Ltd T/A Downer. The union sought to conduct a protected action ballot of employees, which Downer opposed. The Commission was tasked with determining whether the union's proposed ballot was lawful and whether Downer's objections had merit.

The primary legal issue was whether the union's proposed ballot complied with the relevant sections of the Fair Work Act 2009. Specifically, the union needed to demonstrate that the proposed action was protected action within the meaning of the Act. The dispute also involved whether the ballot was reasonably likely to cause detriment to Downer or its business, and whether Downer had taken all reasonable steps to facilitate the ballot. The union argued that the ballot was necessary to address issues of job security and workplace conditions, while Downer contended that the ballot would disrupt its operations and harm its business interests.

The Fair Work Commission found that the union's proposed ballot was for protected action and did not contravene any provisions of the Fair Work Act. The Commission concluded that the ballot was reasonably likely to cause detriment to Downer but found that the detriment was not significant enough to warrant refusal of the ballot. The union had shown that the proposed action was necessary to address legitimate workplace issues, and Downer had not demonstrated that it had taken all reasonable steps to facilitate the ballot. As a result, the Commission authorised the union to conduct the ballot as proposed.

The final order was that the union was authorised to conduct the proposed ballot of Downer's employees, subject to compliance with the requirements of the Fair Work Act. Downer was directed to take all reasonable steps to facilitate the ballot and to ensure that the employees were not subjected to any form of coercion or intimidation during the ballot process.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established