Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kone Elevators Pty Limited

[2022] FWC 2764

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Kone Elevators Pty Limited

(B2022/1554)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 OCTOBER 2022

Proposed protected action ballot of employees of Kone Elevators Pty Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Kone Elevators Pty Limited (Respondent).

On 14 October 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Mitchell Johnston of the Applicant declared on 13 October 2022, 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 PR746845.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia brought an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 to hold a protected action ballot for certain employees of Kone Elevators Pty Limited. The application was made due to the union's unsuccessful attempts to reach an agreement with the employer regarding certain employment terms. The employer did not oppose the application, leading the Commission to determine the matter on the basis of the documents submitted, without holding a hearing. The union had to demonstrate that it had genuinely tried to reach an agreement with the employer and that the notification time for the proposed agreement had been met. The Commission was satisfied with the evidence provided by the union, and an order was issued to allow the ballot to proceed.

The primary legal issue before the Commission was whether the union had satisfied the requirements of section 437 of the Fair Work Act to hold a protected action ballot. This involved determining if the union had genuinely tried to reach an agreement with the employer and if the notification period for the proposed agreement had been met. The union needed to demonstrate that it had made reasonable efforts to negotiate with the employer and that it had been unsuccessful in reaching an agreement. Additionally, the union had to show that the proposed agreement met the notification period requirement outlined in section 443(1) of the Act.

The Fair Work Commission concluded that the union had genuinely tried to reach an agreement with the employer and that the notification time for the proposed agreement had been met. The Commission was satisfied with the evidence provided by the union, including the statutory declaration of Mitchell Johnston, which outlined the steps taken by the union in bargaining with the employer. As a result, the Commission decided to grant the union's application and issued an order permitting the protected action ballot to proceed.

In light of the findings and the order issued, the Fair Work Commission authorised the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia to hold a protected action ballot for the specified employees of Kone Elevators Pty Limited. The Commission determined that the union had met the necessary requirements under the Fair Work Act and that the proposed agreement had fulfilled the notification period requirement. This decision allowed the union to proceed with the ballot, enabling the employees to vote on the proposed agreement and take the necessary protected action if the outcome was in their favour.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established