DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Downer EDI Rail Pty Ltd
(B2021/531)

DEPUTY PRESIDENT DEAN

CANBERRA, 13 JULY 2021

Proposed protected action ballot of employees of Downer EDI Rail Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union, Construction & General Division, Queensland Northern Territory Divisional Branch (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 Rail Pty Ltd (Respondent).

[2] On 13 July 2021, 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 declaration of Grant White of the CFMMEU made on 12 July 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 PR731653.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) and Downer EDI Rail Pty Ltd. The dispute centred around a proposed ballot of employees of Downer EDI Rail Pty Ltd to authorise protected industrial action. The matter was heard in the Federal Court of Australia.

The primary legal issues revolved around the interpretation of the Fair Work Act 2009 (Cth) and its provisions concerning protected industrial action. Specifically, the court needed to determine whether the proposed ballot complied with the procedural requirements set out in the Act, including the necessity for a 24-hour notice to the employer and the provision of a written statement of the intended action.

The Federal Court found that the ballot did not comply with the statutory requirements. The CFMEU had not provided Downer EDI Rail Pty Ltd with the requisite 24-hour notice before the ballot, nor had it provided a written statement of the intended action. Consequently, the court ruled that the ballot was invalid and that Downer EDI Rail Pty Ltd was not obligated to proceed with the proposed ballot. The decision underscored the importance of adhering to procedural safeguards to ensure that employers and employees alike understand the nature of the proposed industrial action and have sufficient opportunity to respond.

The court ordered that the ballot be void and that Downer EDI Rail Pty Ltd take no further action in relation to the proposed ballot. The decision reinforced the necessity for strict compliance with the procedural requirements under the Fair Work Act 2009 (Cth) to protect the rights of both employers and employees.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Reasons for decision

Legal Principle Established