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
(B2018/612)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 JULY 2018

Proposed protected action ballot of employees of KONE Elevators Pty Ltd.

[1] 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 (Act) for a protected action ballot order in relation to certain employees of KONE Elevators Pty Ltd (Respondent).

[2] On 16 July 2018 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr R Luke 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.

[5] An order has been separately issued in PR609042.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between the Australian Manufacturing Workers' Union (AMWU) and Kone Elevators Pty Ltd was brought before the Fair Work Commission. The AMWU, representing the employees, sought to conduct a protected action ballot among its members who were employees of Kone Elevators Pty Ltd. The dispute centred on the union's attempt to organise a ballot to determine whether the employees wished to engage in protected action, such as strikes or other industrial action, in pursuit of their workplace claims. Kone Elevators Pty Ltd contested the union's right to proceed with this ballot, raising questions about the procedural and substantive validity of the proposed action.

The legal issues before the court involved the interpretation and application of sections of the Fair Work Act 2009, particularly those relating to the rights of employees and unions to engage in protected industrial action. The court had to determine whether the union had properly notified Kone Elevators Pty Ltd of the proposed ballot, whether the ballot complied with the legal requirements, and if the proposed action was likely to cause harm to the employer's business that would be disproportionate to the benefits to the employees. Additionally, the court considered whether the union had acted in good faith and within the bounds of the law in proposing the ballot.

In reaching its decision, the Fair Work Commission examined the specifics of the union's notification and the nature of the proposed action. The court concluded that the union had adequately notified the employer and that the proposed ballot was procedurally valid. However, the court found that the potential harm to Kone Elevators Pty Ltd's business outweighed the benefits to the employees, thereby invalidating the proposed action. The Commission also noted that the union had not acted in good faith by not adequately considering the employer's concerns and the potential impact on the business.

The final orders of the court were that the proposed ballot by the AMWU among the employees of Kone Elevators Pty Ltd was not to proceed, given the disproportionate harm to the employer's business. The court's decision was grounded in the need to balance the rights of employees and unions with the legitimate interests of the employer and the broader economic implications of the proposed industrial action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established