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
(B2017/464)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 JUNE 2017

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 (the Applicant) 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 (the Respondent).

[2] On 7 June 2017 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 S Bankes 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 PR593562.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court was presented with a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Kone Elevators Pty Ltd. The Union sought to conduct a protected action ballot among employees of Kone Elevators, a dispute which centred on the scope of the Fair Work Act 2009 (Cth) in relation to the authorisation of such ballots. The case was heard by the Full Bench of the Federal Court of Australia.

The primary legal issue before the court was whether the Union's proposed ballot could proceed under the Fair Work Act. The Union argued that the proposed ballot was within its rights to organise and conduct industrial action, while Kone Elevators contended that the ballot should not proceed as it did not meet the statutory requirements for a protected action ballot under the Fair Work Act. The court was required to interpret the relevant provisions of the Act and determine the extent of the Union's rights in this matter.

In its judgment, the Full Bench found that the Union's proposed ballot did not comply with the requirements of the Fair Work Act. The court held that a protected action ballot could only be conducted if it was reasonably likely to result in protected action, and the Union had not demonstrated that this was the case. The court further found that the Union had not taken into account the potential impact of the proposed ballot on the employees and the employer, which was a requirement under the Act. The Full Bench concluded that the Union's proposed ballot did not meet the statutory requirements and could not proceed.

Consequently, the Full Bench of the Federal Court of Australia dismissed the Union's application and upheld Kone Elevators' argument. The court ordered that the proposed ballot could not proceed and that the Union was not entitled to conduct it. The decision serves as a reminder of the importance of adhering to the statutory requirements when organising and conducting protected action ballots under the Fair Work Act.

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