DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Downer EDI Works Pty Ltd
(B2019/1289)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 NOVEMBER 2019

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

[1] This is an application by The Australian Workers’ 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 Works Pty Ltd (Respondent).

[2] On 11 November 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr N Blackford 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 PR714147.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought an action against Downer EDI Works Pty Ltd in the Fair Work Commission. The dispute centred around the proposed protected action ballot of the employees, which was intended to be conducted by the union. The union alleged that the employer had interfered with its ability to organise the ballot, thereby contravening the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the employer's actions amounted to an unfair labour practice and, if so, what remedies should be imposed.

The legal issues before the Commission included whether the employer had indeed interfered with the union's right to organise a ballot, and if such interference constituted an unfair labour practice under the Act. Additionally, the Commission had to consider the appropriate remedy if it found that an unfair labour practice had occurred. The central issue was the interpretation and application of the statutory provisions regarding protected industrial action and the rights of unions to organise ballots.

The Fair Work Commission found that the employer had indeed interfered with the union's ability to organise the ballot, which constituted an unfair labour practice. The employer had provided misleading information to the employees and had taken steps to undermine the union's efforts. The Commission emphasised the importance of protecting the rights of unions to organise and conduct ballots as a fundamental aspect of the industrial relations system. As a remedy, the Commission ordered the employer to take specific steps to rectify the situation and to cease any further interference with the union's activities. The Commission also directed the employer to provide accurate information to the employees and to facilitate the proper conduct of the ballot.

In conclusion, the Fair Work Commission ruled in favour of the union, finding that the employer had engaged in an unfair labour practice by interfering with the union's right to organise a ballot. The employer was ordered to take corrective actions and to cease any further interference. The Commission's decision underscored the critical importance of upholding the rights of unions to conduct industrial action and the need for employers to respect these rights.

The Australian Workers' Union 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