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

[2022] FWC 2831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Kone Elevators Pty Ltd

(B2022/1588)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 OCTOBER 2022

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) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Kone Elevators Pty Ltd (Respondent).

On 21 October 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Stephen Isberg of the Applicant declared on 20 October 2022, 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 PR747082.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Australian Manufacturing Workers’ Union (AMWU) and Kone Elevators Pty Ltd. The AMWU sought a protected action ballot order under section 437 of the Fair Work Act 2009 in relation to certain employees of Kone Elevators. The application was made due to ongoing difficulties in bargaining with the employer over an agreement. The respondent, Kone Elevators, did not oppose the application, allowing the matter to be determined on the papers without a hearing.

The central legal issues that the Commission needed to address were whether the AMWU had genuinely been attempting to reach an agreement with Kone Elevators, and if the statutory requirements for a protected action ballot were satisfied. The AMWU had to demonstrate that it had been genuinely trying to negotiate and that the statutory notification period for the proposed agreement had elapsed. The Commission examined the evidence, including a statutory declaration from Stephen Isberg of the AMWU, which outlined the steps taken in bargaining and the union's efforts to reach an agreement.

The Vice President of the Fair Work Commission, Catanzariti, found that the AMWU had indeed been genuinely attempting to reach an agreement with Kone Elevators, and the statutory notification period had been met. Based on this, the Commission was satisfied that the conditions for granting a protected action ballot order were fulfilled. The decision was made on 21 October 2022, and an Order was issued in PR747082 to permit the AMWU to proceed with the ballot as requested.

In summary, the Fair Work Commission granted the AMWU’s application for a protected action ballot order, recognising the union's efforts in bargaining and the satisfaction of statutory requirements. The decision allowed the AMWU to proceed with the ballot in accordance with the Fair Work Act.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established