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

[2024] FWC 2885

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

Schindler Lifts Australia Pty Ltd

(B2024/1359)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 18 OCTOBER 2024

Proposed protected action ballot of employees of Schindler Lifts Australia 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 Schindler Lifts Australia Pty Ltd (Schindler Lifts or Employer).

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

On 16 October 2024, the Commission was advised that the Employer, in effect, 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 Stephen Fodrocy, Industrial Officer, 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 Schindler Lifts, 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 Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting 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 1 November 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780340.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with the 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] B2024/1358.

[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), represented by its Industrial Officer Stephen Fodrocy, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of Schindler Lifts Australia Pty Ltd. This application followed negotiations for an enterprise agreement that Schindler Lifts had not opposed. The AMWU aimed to conduct a ballot to determine whether its members were willing to take protected industrial action. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) had filed a separate application concerning the same proposed agreement.

The primary legal issue before the Deputy President was whether the AMWU had met the conditions set forth in section 443(1) of the Fair Work Act for a protected action ballot order. This involved verifying that the AMWU had genuinely attempted to reach an agreement with Schindler Lifts and that the notification time for the proposed agreement had been met. The Deputy President considered the declaration from Stephen Fodrocy, which outlined the union's bargaining efforts, and determined that the AMWU had fulfilled all necessary requirements. The Deputy President also had to set a closing date for the ballot, ensuring it allowed for a fair and timely process.

The Deputy President concluded that the AMWU had satisfied the statutory criteria for a protected action ballot order, as evidenced by the union's genuine attempts to reach an agreement and the notification period for the proposed agreement. The Deputy President further determined that the ballot period should conclude on 1 November 2024, aligning with the requested period in the application. Vero Engagement & Voting Solutions Pty Ltd was approved to conduct the ballot, given its eligibility as a protected action ballot agent. This decision also set the stage for compulsory conciliation under section 448A, with another Member of the Commission to be assigned for the conciliation conference involving all bargaining representatives.

An Order was issued in PR780340, and the matter was assigned to another Member of the Commission to conduct the compulsory conciliation conference. This Member was tasked with issuing an Order for the attendance of all bargaining representatives at the conference, with potential Directions to ensure meaningful negotiations.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established