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

[2024] FWC 761

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
v

KONE Elevators Pty Ltd

(B2024/249)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 MARCH 2024

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 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 KONE Elevators Pty Ltd (KONE 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 enterprise agreement.[1]

On 25 March 2024, the Commission was advised that KONE did not, in effect, 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 Daniel Lacey, Organiser, 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 KONE, 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 the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] 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 10 April 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I have reordered Clauses six (6) to nine (9) of the proposed order to align with the Commission’s standard drafting style.

An Order has been separately issued in PR772687.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter (B2024/248). That Member will issue an Order requiring the attendance of all bargaining representatives involved 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] B2024/248.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[3] This is, in effect, 10 working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers' Union (AMWU), filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order in relation to employees of KONE Elevators Pty Ltd. This case was heard by Deputy President Hampton of the Fair Work Commission in Adelaide on 25 March 2024. The AMWU sought to conduct a ballot for protected industrial action due to ongoing disputes over a proposed enterprise agreement with KONE Elevators.

The central legal issues before the Court were whether the AMWU had met the statutory requirements for a protected action ballot under the Fair Work Act, specifically section 443(1), and if the designated ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), was eligible to conduct the ballot. The Court also needed to determine an appropriate closing date for the voting period, as stipulated in section 443(3)(c) of the Act.

Upon reviewing the submitted documents, including a declaration from Mr. Daniel Lacey, the Organiser for the AMWU, who attested to the union's efforts in bargaining with KONE, the Deputy President found that the AMWU had genuinely attempted to reach an agreement and had satisfied the notification period requirement under section 443(1) of the Act. CiVS, the proposed ballot agent, was deemed eligible and authorised to conduct the ballot, having been approved under section 468A of the Act. The Court set the closing date for voting as 10 April 2024, which is effectively 10 working days from the date of the Order. The matter will be assigned to another member of the Commission for a compulsory conciliation conference to facilitate negotiations between the parties.

The Court issued an order under section 448A of the Act, requiring the attendance of all bargaining representatives at the conciliation conference and likely issuing directions to ensure the parties are prepared for meaningful negotiations. The order also adjusted the proposed order's clauses to align with the Commission's standard drafting style, with a separate order issued in PR772687.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union v 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