Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Kone Elevators Pty Ltd
[2025] FWC 1485
•30 MAY 2025
| [2025] FWC 1485 |
| 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
(B2025/863)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 30 MAY 2025 |
Proposed protected action ballot of employees of KONE Elevators Pty Ltd
This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or 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 (Kone Elevators or Employer).
On 29 May 2025, the Commission was advised that the Employer objected to one aspect of the application. Kone Elevators contended that there should be certain exemptions from the Industrial Action contemplated in several of the proposed questions in clause 5 of the proposed order on public health and safety grounds. In particular, Kone Elevators asserted that it operates and maintains elevator and escalators in health, educational and aged care facilities and sought an exemption from Industrial Action for all lift entrapments, verifying and/or performing of any isolations (item 12 of draft order), energisation and / or re-energisation of circuits or equipment (item 21 of draft order) and bans on the completion of digital or physical documentation or data entry type tasks (Risk Assessments item 8 of draft order) on those grounds.
The CEPU contended in response that KONE Elevators “has not identified any proper basis by which the application should be dismissed or otherwise amended”. Further the CEPU submitted that there is no particularisation of the public health and safety concerns raised by the employer, and even if this was the case, the Commission would have no basis to amend or refuse the questions for this reason.
Despite parties being afforded the opportunity to provide further submissions or evidence and/or a to make a request to be heard, neither party did so. In the circumstances, and on this basis, I have decided to determine the matter on the papers without holding a hearing.
The application was not otherwise opposed, and Kone Elevators did not seek an extended period of notice of industrial action.
Section 437 of the Act provides as follows:
“437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1)A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a)a greenfields agreement; or
(b)a cooperative workplace agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a)the group or groups of employees who are to be balloted; and
(b)the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and
(c)the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Note:The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a)will be covered by the proposed enterprise agreement; and
(b)either:
(i)are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii)are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany the application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.”
Section 443 of the Act provides:
“443 When the FWC must make a protected action ballot order
(1)The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:
(a)an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
(2)The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3)A protected action ballot order must specify the following:
(a)the name of each applicant for the order;
(b)the group or groups of employees who are to be balloted;
(c)the date by which voting in the protected action ballot closes;
(d)the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;
(e)the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f)the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(3A)For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.”
I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter and do not arise from the contested aspect. Further, compliance with the matters raised in the provisions above is also not in dispute.
In relation to the asserted public safety concerns, I would accept that depending upon the precise context and the form, duration and nature of industrial action, such concerns may arise in this enterprise. However, no evidence has been provided by Kone Elevators that would enable that assessment to be made. However, it is also important to understand the scheme of the Act and the role played by a PABO. The function of the PABO is established by Part 3-3 of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action in support of bargaining for relevant enterprise agreements.
The PABO is part of the bargaining regime of the Act. The scheme of the Act is outlined in various decisions of the Commission including in John Holland v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and The Australian Workers’ Union[1] and by the Federal Court in J.J. Richards & Sons Pty Ltd v Fair Work Australia.[2]
The taking of protected industrial action by both employees and employers, that is designed to advance claims and to persuade the other party to change their position, is part of that scheme. This must be undertaken in the context of the relevant party genuinely trying to reach an enterprise agreement.
Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,[3] whether the action is notified in accordance with the requirements of the Act,[4] and whether it is industrial action within the meaning of the Act.[5] Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population, or of part of it or causes significant damage to the Australian economy, or an important part of it,[6] or causes significant economic harm.[7] Industrial action that is not protected industrial action may be prevented.[8]
Accordingly, although the questions (the proposed industrial action) are not supported by the Employer, the objection about the potential impact of the proposed questions is not presently relevant. I observe that the Commission does not, in determining a PABO application, approve or disapprove of the particular proposed forms of industrial action beyond consideration of the ballot questions required by s.443(3)(d) of the Act.
On the basis of the material before me, including the declaration of Ash Bamford, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Kone Elevators, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.
The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero). Vero has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 16 June 2025.[9] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR787783.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
[1] [2010] FWAFB 526.
[2] [2012] FCAFC 53.
[3] Sections 437, 408 and 409 of the Act.
[4] Section 414 of the Act.
[5] Section 19 of the Act.
[6] Section 424 of the Act.
[7] Section 423 of the Act.
[8] Section 418 of the Act.
[9] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.
Printed by authority of the Commonwealth Government Printer
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