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

[2022] FWC 894

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Downer EDI Works Pty Ltd T/A Downer

(B2022/327)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 APRIL 2022

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

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 T/A Downer (the Respondent).

On 19 April 2022, my Associate was advised that the Respondent 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 Mr Marc McPhee 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 PR740456

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied to the Fair Work Commission for an order allowing a ballot of its members employed by Downer EDI Works Pty Ltd T/A Downer. The application was made under section 437 of the Fair Work Act 2009, which provides for protected action ballots in the case of an industrial dispute. Downer EDI Works did not object to the application. The Deputy President of the Fair Work Commission, Clancy, determined the matter on the papers without a hearing, as the respondent had no objections.

The central legal issue for the Fair Work Commission to decide was whether the AWU had satisfied the statutory requirements for a protected action ballot. Specifically, the Commission had to determine if the union had genuinely tried to reach an agreement with Downer EDI Works, if there was a notification time in relation to the proposed agreement, and if the requirements of section 443(1) of the Act had been met. The union's declaration by Mr. Marc McPhee, which outlined the steps taken in bargaining with Downer EDI Works, was considered in making this determination.

The Fair Work Commission found that the AWU had genuinely attempted to reach an agreement with Downer EDI Works, and there was indeed a notification time in relation to the proposed agreement. Furthermore, the requirements of section 443(1) of the Act had been met. As a result, the Deputy President was satisfied that the application met the criteria for a protected action ballot. An order was issued separately in PR740456.

In conclusion, the Fair Work Commission granted the AWU's application for a protected action ballot of its members employed by Downer EDI Works Pty Ltd T/A Downer. The Commission found that the union had genuinely tried to reach an agreement with the employer and that the statutory requirements for a ballot were satisfied. The decision was made on the papers, as the employer did not object to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established