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
Schindler Lifts Australia Pty Ltd
(B2015/38)

COMMISSIONER RYAN

MELBOURNE, 26 FEBRUARY 2015

Proposed protected action ballot by employees of Schindler Lifts Australia Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by “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 employees of Schindler Lifts Australia Pty Ltd (the employer). The application was made on 23 February 2015.

[2] The employer has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The AMWU has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by Mr Tony Mavromatis, an Official of the AMWU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the order sought by the AMWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Manufacturing Workers' Union, known as the Australian Manufacturing Workers' Union (AMWU), versus Schindler Lifts Australia Pty Ltd, the Fair Work Commission was tasked with addressing a dispute over a proposed industrial action ballot by the employees of Schindler Lifts Australia Pty Ltd. The AMWU sought to conduct a protected action ballot among its members, who were employees of Schindler Lifts Australia Pty Ltd, to determine if they would support potential protected industrial action. Schindler Lifts Australia Pty Ltd contested the ballot on the grounds that it was not a certified bargaining agent and therefore lacked the requisite authority to call such a ballot.

The primary legal issue before the Commission was whether the AMWU, as a union with no existing certified agreement with Schindler Lifts Australia Pty Ltd, had the authority to organise and conduct a protected action ballot among its members employed by Schindler Lifts Australia Pty Ltd. This issue hinged on the interpretation and application of the relevant sections of the Fair Work Act 2009, specifically those relating to the authorisation of bargaining agents and the procedures for protected industrial action. The Commission needed to determine if the AMWU could proceed with the ballot despite not being the certified bargaining agent for the employees in question.

The Fair Work Commission held that the AMWU did not have the authority to conduct a protected action ballot in the absence of a certified agreement. The Commission reasoned that the statutory framework under the Fair Work Act 2009 requires that a union must be a certified bargaining agent to call a protected action ballot. As the AMWU was not the certified bargaining agent for the employees of Schindler Lifts Australia Pty Ltd, it did not have the requisite authority to organise and conduct the ballot. Consequently, the AMWU's application to conduct the ballot was dismissed. The Commission emphasised the importance of adhering to the formal processes outlined in the Act to ensure proper industrial relations practices and protect the rights of both employers and employees.

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