"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Kone Elevators Pty Ltd

[2025] FWC 1524

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v

KONE Elevators Pty Ltd

(B2025/886)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 4 JUNE 2025

Proposed protected action ballot of employees of KONE Elevators Pty Ltd

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU 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 KONE Elevators Pty Ltd (Kone Elevators or Employer).

I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 3 June 2025, the Commission was advised that the Employer, in effect, did not object to the Application, if amended to clarify some drafting issues with the proposed order. Leave to amend has been granted.

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 Nathan Clements, Organiser, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Kone Elevators, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 19 June 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR787895.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives in 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] B2025/863.

[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), acting on behalf of certain employees of KONE Elevators Pty Ltd, applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009. The AMWU sought to conduct a ballot for proposed protected action in relation to an enterprise agreement. KONE Elevators did not object to the application, provided that it was amended to address certain drafting issues. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has also made a separate application for a protected action ballot order in relation to the same proposed agreement. The Deputy President of the Commission, Hampton, determined the matter on the papers without a hearing, as the employer did not object and the AMWU had satisfied the requirements under section 443(1) of the Act.

The legal issues before the Court were whether the AMWU had fulfilled the necessary conditions for a protected action ballot order, including the requirement to genuinely attempt to reach an agreement with the employer. The Court also needed to determine whether the proposed notification period and the date for closing the ballot were appropriate. Additionally, the Court had to consider whether Democratic Outcomes Pty Ltd (CiVS), the proposed ballot agent, was approved and authorised under the Act to conduct the ballot.

The Court found that the AMWU had genuinely attempted to reach an agreement with KONE Elevators, and that the notification period and ballot closing date were satisfactory. The Court also confirmed that CiVS was an approved and authorised ballot agent. Consequently, the Court granted the AMWU's application for a protected action ballot order, specifying the date by which voting was to close as 19 June 2025. The Court also determined that the matter would be assigned to another Member of the Commission to conduct a compulsory conciliation conference, along with the related matter, to ensure meaningful negotiations.

The Court issued an order in PR787895, granting the AMWU's application for a protected action ballot order. The order specified the date by which voting was to close as 19 June 2025 and authorised CiVS to conduct the ballot. Another Member of the Commission was assigned to conduct a compulsory conciliation conference, along with the related matter, to ensure meaningful negotiations. The Court also issued directions requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established