“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v KONE Elevators Pty Ltd T/A KONE

[2022] FWC 1890

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 T/A KONE

(B2022/703)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 JULY 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 (Act) for a protected action ballot order in relation to certain employees of KONE Elevators Pty Ltd (the Respondent).

On 19 July 2022, my Associate was advised that the Respondent 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 Mr Barry Terzic 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.

An order has been separately issued in PR743933.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) sought a protected action ballot order from the Fair Work Commission against KONE Elevators Pty Ltd under section 437 of the Fair Work Act 2009. The union sought the order in relation to certain employees of KONE Elevators, with the aim of facilitating a proposed protected action ballot. The union argued that it had been genuinely attempting to reach an agreement with the respondent and that there was a notification time in relation to the proposed agreement. The respondent did not object to the application, and the matter was determined on the papers without a hearing.

The legal issues that the Fair Work Commission was required to decide included whether the union had genuinely been attempting to reach an agreement with the respondent and whether there was a notification time in relation to the proposed agreement. The union had to establish that it had been genuinely attempting to reach an agreement with the respondent and that it had taken all reasonable steps to do so. The commission also had to determine whether there was a notification time in relation to the proposed agreement, as required by section 443(1) of the Act.

The Fair Work Commission was satisfied that the union had been genuinely attempting to reach an agreement with the respondent and that it had taken all reasonable steps to do so. The commission found that the union had provided a declaration from Mr Barry Terzic, setting out the steps taken by the union in bargaining with the respondent. The commission was also satisfied that there was a notification time in relation to the proposed agreement, as required by section 443(1) of the Act. As a result, the commission decided to grant the union's application for a protected action ballot order.

The Fair Work Commission issued an order in PR743933, granting the union's application for a protected action ballot order. The commission was satisfied that the union had met the requirements of section 437 of the Fair Work Act 2009 and that there was a notification time in relation to the proposed agreement. The order allows the union to proceed with the proposed protected action ballot in relation to certain employees of 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