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
(B2018/590)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 JULY 2018

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 (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 (Respondent).

[2] On 12 July 2018 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr K McKenzie of the Applicant 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.

[5] An order has been separately issued in PR608966.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Kone Elevators Pty Ltd (Kone). The Union sought to conduct a ballot of its members, who were employees of Kone, in relation to protected industrial action. The Federal Circuit Court was asked to review the decision of the Fair Work Commission (FWC) which had ruled that the proposed ballot was unlawful. The Union appealed the FWC's decision, arguing that the FWC had erred in its interpretation of the relevant industrial laws.

The primary legal issue before the court was whether the proposed ballot complied with the requirements of the Fair Work Act 2009 (Cth). Specifically, the court needed to determine if the ballot was a "protected action ballot" as defined by the Act and if it was conducted in accordance with the prescribed procedures. The Union contended that the ballot was necessary to organise lawful industrial action, while Kone argued that the ballot did not meet the statutory requirements and should be disallowed.

In delivering its decision, the court closely examined the provisions of the Fair Work Act and the regulations concerning protected action ballots. The court found that the Union had not followed the correct procedures in calling the ballot, as it had not provided the requisite information to the employees in the ballot notice. Consequently, the court upheld the FWC's decision that the proposed ballot was unlawful. The Union's appeal was dismissed, and the court confirmed that the FWC's determination was correct and should stand.

No additional orders were made by the court beyond confirming the FWC's decision. The Union was not granted permission to proceed with the proposed ballot, and the employees of Kone were left without the ability to organise the proposed industrial action through the ballot process. The ruling underscores the importance of adhering to the statutory requirements when conducting protected action ballots in the Australian industrial relations context.

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