The Australian Workers' Union v Downer EDI Works Pty Ltd T/A Downer

[2024] FWC 891

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Workers' Union
v

Downer EDI Works Pty Ltd T/A Downer

(B2024/409)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 8 APRIL 2024

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

This is an application by the Australian Workers’ Union (AWU or 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 T/A Downer (Employer).

On 5 April 2024, the Commission was advised that the Employer did not object to the Application.

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 Joel Archer, Lead Organiser AWU, setting out the steps taken by the Applicant in bargaining with the Employer and that they have been, and are, genuinely trying to reach agreement with the Employer, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 21 May 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR773256.

This matter will shortly be listed for a s.448A compulsory conciliation conference. An Order will be issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is in effect 30 working days from the date of the order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) made an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Downer EDI Works Pty Ltd, trading as Downer. The application was filed with the Fair Work Commission and was made without opposition from the employer. The Deputy President, Wright, decided to determine the matter based on the submitted documents, without the need for a hearing.

The legal issues before the court involved verifying whether the union had met the notification time for the proposed agreement and whether all requirements under section 443(1) of the Act were satisfied. The union had to demonstrate that it had genuinely attempted to reach an agreement with the employer. The evidence provided included a declaration by Joel Archer, the Lead Organiser of the AWU, outlining the union's bargaining efforts with the employer.

The Deputy President, Wright, was satisfied with the evidence presented that there was a notification time in relation to the proposed agreement and that the union had genuinely tried to reach an agreement with the employer. Consequently, the Deputy President determined that the date for closing the ballot would be 21 May 2024, establishing the ballot period under section 448A(2) of the Act. The determination was made to ensure that all bargaining representatives would attend a compulsory conciliation conference, aiming to facilitate meaningful negotiations.

The court issued an order separately in PR773256, and directions were issued to ensure that the parties would attend the conciliation conference ready to conduct meaningful negotiations. This decision was made to expedite the resolution of the dispute and to uphold the legislative requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established