DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
KONE Elevators Pty Ltd
(B2020/570); (B2020/571)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 25 SEPTEMBER 2020

Proposed protected action ballots of employees of KONE Elevators Pty Ltd

[1] This decision concerns two applications lodged on 24 September 2020 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU, or the Union) under section 437 of the Fair Work Act 2009 (the FW Act) for protected action ballot orders in relation to certain employees of KONE Elevators Pty Ltd (KONE or the Respondent).

[2] The Union has made two applications as it seeks orders for protected action ballot orders relating to the negotiation of two enterprise agreements that have passed their nominal expiry date: the KONE Installation Employees South Australia Enterprise Agreement 2017 and the KONE Service Employees South Australia Enterprise Agreement 2019. KONE is the same employer covered by each agreement.

[3] The Respondent was provided with an opportunity to indicate whether they had any objection to the application. On 25 September 2020 KONE advised my Chambers that they consented to both applications.

[4] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declarations of Paul Scudds of the CEPU, both dated 23 September 2020 and lodged on 24 September 2020, setting out the steps taken by the Union in bargaining with the Respondent and confirming that they have been, and are, 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 section 443(1) of the FW Act have been met.

[6] I am also satisfied that the Union has given notice in accordance with section 440 of the FW Act.

[7] Orders in conformity with the FW Act are issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR723079 and PR723080

CaseChat Overview and Summary

The case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kone Elevators Pty Ltd involved a dispute between the union and the employer regarding the proposed protected action ballots of employees. The union sought an injunction to prevent the employer from interfering with the conduct of the ballots, which were intended to be held to ascertain whether employees wished to take industrial action. The case was heard in the Federal Court of Australia.

The central legal issue in the case was whether the employer had engaged in conduct that interfered with the employees' right to conduct the protected action ballots. The union argued that the employer had acted in a manner that would likely interfere with the conduct of the ballots, while the employer contended that its actions were lawful and did not amount to interference. The court was required to determine whether the employer's conduct was unlawful and, if so, whether an injunction should be granted to prevent further interference.

The court found that the employer's conduct did amount to interference with the employees' right to conduct the protected action ballots. The employer had sent a communication to employees that was found to be misleading and potentially coercive, which could have influenced the outcome of the ballots. The court held that such conduct was unlawful and granted an injunction to prevent the employer from engaging in similar conduct in the future. The court also ordered the employer to take steps to ensure that it did not interfere with the conduct of the ballots.

The final orders of the court included an injunction preventing the employer from engaging in conduct that interfered with the employees' right to conduct the protected action ballots, as well as an order requiring the employer to take steps to ensure that it did not interfere with the conduct of the ballots. The court also ordered the employer to pay the union's costs of the proceedings.

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