Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the...

[2019] FWC 1269

[2019] FWC 1269

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
and
"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)-Victorian Branch
v
Otis Elevator Company Pty Ltd
(B2019/158); (B2019/159)

COMMISSIONER CIRKOVIC MELBOURNE, 27 FEBRUARY 2019

Proposed protected action ballot of employees of Otis Elevators Proposed protected action ballot of employees of Otis Elevator Company Pty Ltd.

[1] On 22 February 2019 the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) separately applied for protected action ballot orders under s.437 of the Fair Work Act 2009.

[2] The Applicants represent employees of Otis Elevator Company Pty Ltd. The Applicants began bargaining for a new enterprise agreement with the Respondent on 24 April 2018. The applications concern the Applicants’ respective members who would be covered by the proposed enterprise agreement.

[3] The two applications were allocated to my chambers on 25 February 2019. By emails respectively sent at 12:27pm and 12:30pm, the Respondent confirmed that it opposed both applications. S.441 of the Act provides that the Commission must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

[4] I listed the matters for mention at 4.00pm on 25 February 2019, to be heard together due to the common employer and proposed enterprise agreement in both applications. 1 For the same reason, this decision provides reasons that address both applications and orders.

[5] Mr Richards of the CEPU and Mr Gardner of the AMWU appeared for the Applicants, and Mr Dalton of AI Group appeared for the Respondent.

Statutory framework

[6] S.437 of the Act enables a bargaining representative to apply for a protected action ballot order. Subject to the restrictions in s 437(2A) and s 438 (which are not presently relevant), the Commission must make an order in relation to employees who will be covered by a proposed agreement in the circumstances set out in s 443. This section provides:

“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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).”

Parties’ positions

[7] At the mention hearing, Mr Dalton submitted that the basis of the Respondent’s opposition to the applications was that the Applicants were not genuinely trying to reach an agreement with the Respondent. Mr Dalton submitted that the Respondent required one week to prepare its submissions, after which the Applicants would reply and then the matter be heard. The Applicants objected to that timeframe on the bases that the Respondent’s position was not properly developed and the Act’s clear requirement that matters such as these be dealt with urgently. I ordered the Respondent to provide its objection submissions by close of business Wednesday 27 February 2019, the Applicants to reply by close of business Thursday 28 February 2019, and that the matter be set down for hearing on the morning of Friday 29 February 2019.

[8] On 26 February 2019 at 4:26pm, Mr Dalton emailed my chambers confirming that the Respondent withdrew its opposition to the applications.

Consideration

[9] Both applications were supported by statutory declarations, by Mr Diston of the CEPU and Mr Gardner of the AMWU.

[10] I have noted:

1. The CEPU and AMWU are bargaining representatives in relation to their respective applications and the restrictions in ss.437(2A) and 438(1) of the Act do not apply; 2

2. Each application specifies the group of employees to be balloted and the questions to be put to the employees; 3

3. The nominal expiry date of the applicable agreement, which is the same in relation to both applications, has passed; 4 and

4. The CEPU and AMWU have been genuinely trying to reach agreement with the Respondent. 5

[11] Therefore, on the basis of the material before me, I am satisfied that the CEPU and AMWU have fulfilled the statutory prerequisites for protected action ballot orders, and accordingly, I must make a protected action ballot in relation to each application.

[12] Orders will be issued separately to this decision.

COMMISSIONER

Appearances:

S. Richards for the CEPU

J. Gardner for the AMWU

T. Dalton for Otis Elevator Company Pty Ltd

Hearing details:

Mention hearing conducted in Chambers by telephone at 4.00pm on 25 February 2019

Printed by authority of the Commonwealth Government Printer

<PR705331>

 1   Fair Work Act 2009 (Cth) s 442.

 2 Ibid s 437(1).

 3 Ibid s 437(3).

 4 Ibid s 438(1).

 5   Ibid s 443(1), Form F34B at question 2.1.