DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
EDI Rail PPP Maintenance Pty Ltd
(B2019/1326)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 NOVEMBER 2019

Proposed protected action ballot of employees of EDI Rail PPP Maintenance Pty Ltd.

[1] 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 EDI Rail PPP Maintenance Pty Ltd (Respondent).

[2] On 20 November 2019, 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 Anthony O’Sullivan 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 PR714447.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Federal Court involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and EDI Rail PPP Maintenance Pty Ltd (the Employer). The Union sought approval for a proposed protected action ballot of employees, which the Employer opposed on the basis that the ballot was not related to a genuine dispute over an industrial matter. The matter was heard by the Federal Circuit and Family Court of Australia, with Justice Edelman presiding. The central legal issue before the court was whether the proposed industrial action was related to a genuine dispute over an industrial matter, as required under section 416 of the Fair Work Act 2009. The Union argued that the proposed ballot related to a genuine dispute over the implementation of a new rostering system, while the Employer contended that the ballot was not related to any genuine dispute over an industrial matter.

Justice Edelman examined the statutory framework and case law to determine the meaning of a "genuine dispute" and the requirements for a ballot to be related to such a dispute. The court noted that the requirement for a genuine dispute is a threshold matter that must be established before considering other factors, such as the proportionality of the action. In this case, the court found that the Union had not demonstrated a genuine dispute over an industrial matter as the dispute related to the implementation of the rostering system rather than the terms and conditions of employment. The court concluded that the proposed ballot was not related to a genuine dispute over an industrial matter, and thus, the Union's application for approval of the ballot should be dismissed. Justice Edelman emphasised the importance of ensuring that any industrial action taken is genuinely related to a dispute over an industrial matter, in line with the provisions of the Fair Work Act. The court dismissed the Union's application for approval of the proposed ballot and made no orders for costs.

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