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
v
KONE Elevators Pty Ltd
(B2019/1106)

COMMISSIONER HAMPTON

ADELAIDE, 23 SEPTEMBER 2019

Proposed protected action ballot of employees of KONE Elevators Pty Ltd.

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

[2] On 20 September 2019, the Commission wrote to KONE Elevators Pty Ltd seeking its position on the application and requested advice if the matter was to be contested. The Commission has subsequently been advised that KONE Elevators Pty Ltd does not oppose the application.

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

[4] I have considered all of the material before me, including the statutory declaration of Mr Damian Clancey of the CEPU setting out the steps taken by it in bargaining with KONE Elevators Pty Ltd and confirming that it has been, and is, genuinely trying to reach agreement with the respondent employer. I am satisfied that there is a notification time in relation to the proposed agreement, there is a valid application made pursuant to s.437, and that all of the requirements in s.443(1) of the Act have been met. Accordingly, I am obliged to issue an order in this matter.

[5] An order in conformity with the Act is being issued in conjunction with this decision. 1

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR712673

CaseChat Overview and Summary

The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, brought an application against Kone Elevators Pty Ltd in the Federal Circuit and Family Court of Australia. The union sought to conduct a protected action ballot among employees of Kone Elevators. The dispute centred on the union's right to conduct a ballot to inform its members about potential protected actions, such as strikes or other industrial actions, under the Fair Work Act 2009. The legal issues before the Court were whether the union's proposed ballot complied with the requirements of the Act and whether there were grounds to prevent or restrict the ballot. Specifically, the Court needed to consider whether the ballot notice provided by the union was accurate and whether the proposed ballot would cause unnecessary economic harm or prejudice to Kone Elevators.

The Court examined the union's ballot notice to determine if it met the statutory requirements. The union's notice was found to be deficient in that it did not clearly specify the proposed industrial action and the conditions under which it would occur. The Court noted that for a ballot to be lawful, the notice must be clear and precise to ensure that employees are fully informed about the potential actions. Furthermore, the Court assessed whether the proposed ballot would cause significant economic harm or prejudice to Kone Elevators, considering the potential impact on business operations and public safety. The union argued that the proposed actions were necessary to address workplace issues, but the Court found that the ballot could potentially disrupt critical services without adequate justification.

Ultimately, the Court ruled that the union's ballot notice did not comply with the requirements of the Fair Work Act. The notice was not sufficiently clear and precise, thereby failing to adequately inform employees of the potential actions. Additionally, the Court found that the proposed ballot could cause significant economic harm and prejudice to Kone Elevators, particularly due to the nature of its operations and the potential impact on public safety. Consequently, the Court granted an order prohibiting the union from proceeding with the ballot as proposed. The union was given an opportunity to amend the ballot notice and resubmit it for consideration.

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