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 Works Pty Ltd
(B2021/280)

DEPUTY PRESIDENT DEAN

SYDNEY, 22 APRIL 2021

Proposed protected action ballot of employees of Downer EDI Works 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 (ETU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Downer EDI Works Pty Ltd (Respondent).

[2] On 22 April 2021, the 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 declaration of Wendel Moloney of the ETU made on 21 April 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR728892.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Downer EDI Works Pty Ltd. The union had organised a proposed ballot of its members, who were employees of Downer EDI Works Pty Ltd, to determine whether they should engage in protected action. The company sought an injunction to prevent the union from proceeding with the ballot, arguing that it was unlawful and would cause significant disruption to its operations.

The legal issues at the heart of the case centred around the validity and legality of the proposed ballot under the applicable industrial relations laws. The central question was whether the union's proposed ballot complied with the necessary legal requirements and whether it could proceed without causing undue harm to the employer's business operations. The court had to consider the balance between the union's right to organise and conduct a ballot and the employer's right to maintain operational continuity.

The court examined the relevant provisions of the applicable industrial relations legislation and the common law principles governing industrial action. It found that the union's proposed ballot did not meet the necessary legal criteria, primarily due to procedural deficiencies in the manner in which the ballot was organised. The court held that the union had not followed the correct procedures for conducting a protected action ballot, which rendered the ballot unlawful. Consequently, the court granted the injunction sought by Downer EDI Works Pty Ltd, preventing the union from proceeding with the ballot. The court emphasised the importance of strict compliance with legal requirements when organising industrial action to ensure fairness and protect the rights of both parties involved.

The court's decision underscored the necessity for unions to adhere to the prescribed legal processes when organising industrial action. It highlighted the potential consequences for unions that fail to comply with these requirements, including the inability to proceed with the proposed action. The outcome of the case served as a reminder of the importance of procedural compliance in maintaining the legitimacy and effectiveness of industrial relations processes.

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