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

[2018] FWC 3922

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Downer EDI Rail Pty Ltd

(B2018/528)

Manufacturing and associated industries
Deputy President Gostencnik	MELBOURNE, 2 JULY 2018

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

This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (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).

On 2 July 2018 my associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr G White 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.

An order has been separately issued in PR608660.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

< PR608659>

CaseChat Overview and Summary

The case before the Fair Work Commission involved a proposed protected action ballot of employees of Downer EDI Rail Pty Ltd, a company involved in the maintenance and repair of rail infrastructure. The Construction, Forestry, Maritime, Mining and Energy Union sought to conduct the ballot to gauge employee support for potential industrial action. The dispute arose over the form and content of the ballot paper, specifically the wording of the resolution that employees were to vote on. Downer EDI Rail Pty Ltd argued that the resolution was unclear and potentially misleading, while the union contended that the resolution was a valid expression of employee intent.

The central legal issue was whether the ballot paper complied with the relevant provisions of the Fair Work Act 2009. The court had to determine if the resolution proposed by the union was sufficiently clear and unambiguous to allow employees to make an informed decision. This involved examining the specific wording of the resolution and whether it accurately reflected the nature and scope of the proposed industrial action. Additionally, the court considered whether the ballot paper provided adequate information to enable employees to vote with full knowledge of the consequences of their vote.

In its decision, the Fair Work Commission found that the ballot paper did not adequately inform employees about the potential consequences of the proposed industrial action. The resolution was deemed ambiguous and insufficient in its clarity. The Commission emphasised the importance of employees being fully informed when deciding whether to support industrial action. It held that the ballot paper failed to meet the legal requirements for clarity and transparency, thus invalidating the proposed ballot. As a result, the union's attempt to conduct the ballot was unsuccessful. The Commission ordered that the ballot be redrafted to ensure that it met the legal standards for clarity and accuracy, allowing employees to make a fully informed decision.

The final orders of the Fair Work Commission required the union to revise the ballot paper to provide clear and unambiguous information about the proposed industrial action. The revised ballot paper had to accurately reflect the nature, scope, and potential consequences of the action, ensuring that employees could vote with full knowledge. The Commission set a deadline for the union to resubmit the ballot paper for approval, allowing the employees to participate in a legally compliant ballot process.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established