Construction, Forestry, Maritime, Mining and Energy Union v Downer EDI Engineering Power Pty Ltd Summary

[2022] FWC 1376

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v

Downer EDI Engineering Power Pty Ltd

(B2022/498)

DEPUTY PRESIDENT DEAN

CANBERRA, 1 JUNE 2022

Proposed protected action ballot of employees of Downer EDI Engineering Power Pty Ltd.

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Downer EDI Engineering Power Pty Ltd (Respondent).

On 30 May 2022, the Respondent wrote to the Commission indicating that it did not oppose the making of the order, however it objected to the order in the form sought by the CFMMEU. The Respondent subsequently withdrew its opposition.

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

On the basis of the material before me, including the declaration of Mark Cross of the CFMMEU made on 26 May 2022, 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.

An Order has been separately issued in PR742206.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) for a protected action ballot order concerning employees of Downer EDI Engineering Power Pty Ltd. The matter was brought under section 437 of the Fair Work Act 2009, which allows unions to apply for a ballot order when negotiations have reached an impasse. The Respondent initially objected to the order but later withdrew its opposition. Deputy President Dean determined the application on the submitted documents without a hearing.

The legal issues before the Commission were whether the CFMMEU had genuinely attempted to reach an agreement with Downer EDI, and if the notification period for the proposed agreement was valid. These issues are critical in determining if the union's proposed industrial action is protected under the Fair Work Act. The Deputy President examined the declaration from the CFMMEU, which outlined their bargaining efforts and the impasse with the Respondent.

In deciding the matter, Deputy President Dean concluded that the union had genuinely attempted to reach an agreement and that the notification period for the proposed agreement was correctly set. The declaration provided sufficient evidence that the union had made reasonable efforts to negotiate and that an impasse existed. Consequently, the Deputy President was satisfied that the requirements of section 443(1) of the Act were fulfilled.

The Commission issued an order in PR742206, granting the CFMMEU permission to hold a ballot for protected industrial action. The Respondent's withdrawal of opposition meant that no further hearing was required, and the application was determined based on the documentation and declarations provided.

Construction, Forestry, Maritime, Mining and Energy Union v Downer EDI Engineering Power Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established