| [2024] FWC 1103 |
| 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
(B2024/492)
| DEPUTY PRESIDENT HAMPTON | SYDNEY, 29 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 (Downer or Employer).
On 26 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, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Downer, 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.
The ballot is to be conducted by the Australian Electoral Commission (AEC).
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 11 June 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 PR774295.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. It is likely that 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, thirty (30) working days from the date of the Order, as sought in the application.
Printed by authority of the Commonwealth Government Printer
<PR774296>
- AGLC
- The Australian Workers' Union v Downer EDI Works Pty Ltd [2024] FWC 1103
- Case
- [2024] FWC 1103
- Decision Date
CaseChat Overview and Summary
The legal issues the court had to decide involved whether the AWU had met all the requirements for a protected action ballot under the Fair Work Act, including the notification time for the proposed agreement and whether the union had genuinely tried to reach an agreement with Downer. The Commission needed to assess whether the AWU's declaration, stating their efforts to negotiate, satisfied the conditions for the ballot to proceed.
The Deputy President of the Commission was satisfied, based on the evidence provided by the AWU, that the notification time had been met and that all requirements for a protected action ballot had been fulfilled. The declaration by Joel Archer, the Lead Organiser for the AWU, outlined the steps taken in bargaining and confirmed that the union had genuinely tried to reach an agreement with Downer. Consequently, the Commission granted the AWU's application and ordered the ballot to be conducted by the AEC. The voting period for the ballot was set to close on 11 June 2024. This decision also set the parameters for the ballot period under section 448A(2) of the Act. The matter was then assigned to another Member of the Commission for the compulsory conciliation conference, with an order to require the attendance of all bargaining representatives for the proposed enterprise agreement at the conference.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
Legal Principle Established
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