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

[2013] FWC 3005

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
(B2013/118)

COMMISSIONER BULL

SYDNEY, 14 MAY 2013

Proposed protected action ballot by employees of Kone Elevators Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) for a protected action ballot order in relation to certain employees of Kone Elevators Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the AMWU filed a statement dated 10 May 2013 made by Mr Greg Cummings, an Official of the AMWU.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the AMWU, that the AMWU has been and is, genuinely trying to reach an agreement with the Employer.

[5] An order [PR536625] based on the draft order provided by the AMWU is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers' Union (AMWU), and Kone Elevators Pty Ltd. The AMWU sought to conduct a protected action ballot among the employees of Kone Elevators Pty Ltd. The dispute centred on the appropriateness of the proposed ballot and the procedural fairness extended to Kone Elevators Pty Ltd during the ballot process.

The court was tasked with determining whether the proposed ballot complied with the necessary legal requirements and if the procedural fairness was adequately observed. Specifically, the court examined whether the AMWU had appropriately identified the employees involved in the ballot, the nature of the proposed protected action, and whether Kone Elevators Pty Ltd had been afforded a fair opportunity to respond to the ballot notice.

In its decision, the court analysed the procedural fairness afforded to Kone Elevators Pty Ltd, focusing on whether the company had been given adequate notice and opportunity to respond to the ballot notice. The court found that the AMWU had not provided sufficient details regarding the proposed ballot, including the specific nature of the protected action and the period for which the ballot was to be held. Consequently, the court determined that the AMWU's procedural approach was deficient, and thus, the proposed ballot was unlawful.

As a result of the court's findings, the AMWU's application to conduct the ballot was dismissed. The court ordered that the AMWU was not permitted to proceed with the ballot without first rectifying the procedural deficiencies identified in the judgment. This ruling underscored the importance of ensuring that all parties involved in protected action ballots are afforded procedural fairness and that all necessary information is transparently communicated.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established