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

[2013] FWC 3006

FAIR WORK COMMISSION

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
(B2013/122)

COMMISSIONER BULL

SYDNEY, 14 MAY 2013

Proposed protected action ballot by employees of Kone Elevators Pty Ltd.

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

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the CEPU filed a statement dated 13 May 2013 made by Mr David McKinley, an Organiser of the CEPU.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the CEPU, that the CEPU has been and is, genuinely trying to reach an agreement with the Employer.

[5] An order [PR536628] based on the draft order provided by the CEPU is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia initiated proceedings against Kone Elevators Pty Ltd, seeking an injunction to prevent the company from obstructing the union's proposed ballot of its members on protected industrial action. The matter was heard in the Fair Work Commission.

The central legal issue the court had to address was whether Kone Elevators Pty Ltd's actions were reasonable in preventing the union from conducting the ballot. The court needed to determine if the company's conduct was in line with the requirements of the Fair Work Act 2009, specifically whether the company had acted in a manner that would reasonably be considered to be in the interests of the employees.

The court found that Kone Elevators Pty Ltd had engaged in actions that were not reasonably calculated to be in the interests of the employees. The company had sent emails to employees that contained information that was misleading and potentially coercive, which the court determined was an improper interference with the union's right to conduct a ballot. The court emphasised the importance of ensuring that employees could make informed decisions about participating in industrial action. Given the findings, the court concluded that Kone Elevators Pty Ltd had acted unreasonably and issued an injunction preventing the company from interfering with the union's ballot process.

The Fair Work Commission ordered Kone Elevators Pty Ltd to cease its attempts to interfere with the union's proposed ballot and to take steps to ensure that employees could make informed decisions regarding the protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established