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

[2024] FWC 762

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

(B2024/248)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 25 MARCH 2024

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 or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) have made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.[1]

On 25 March 2024, the Commission was advised that KONE did not, in effect, object to the Application.

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

On the basis of the material before me, including the declaration of Mr Stephen Bravo, 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, 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 the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[2] 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 10 April 2024.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I have reordered Clauses six (6) to nine (9) of the proposed order to align with the Commission’s standard drafting style.

An Order has been separately issued in PR772689.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matter (B2024/249). That Member will issue an Order requiring the attendance of all bargaining representatives involved 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] B2024/249.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[3] This is, in effect, 10 working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) for a protected action ballot order under section 437 of the Fair Work Act 2009 in relation to employees of KONE Elevators Pty Ltd (KONE or Employer). The matter was heard in the Fair Work Commission. The primary objective of the application was to facilitate a ballot among the employees regarding a proposed enterprise agreement. Notably, another union, the Australian Manufacturing Workers’ Union (AMWU), had also applied for a protected action ballot order concerning the same proposed enterprise agreement. KONE did not object to the CEPU's application, leading the Commission to determine the matter without a hearing.

The legal issues the court needed to decide were whether the CEPU had fulfilled the requirements under section 443(1) of the Act, which mandates the notification period for the proposed agreement, and whether the steps taken by the CEPU demonstrated genuine attempts to reach an agreement with KONE. The court also needed to ascertain if the proposed ballot agent, Democratic Outcomes Pty Ltd T/A CiVS (CiVS), was appropriately approved under section 468A of the Act and thus authorized to conduct the ballot. Additionally, the court had to determine the closing date for the voting period in accordance with section 443(3)(c) of the Act, which was set as 10 April 2024.

The Deputy President, Hampton, concluded that the CEPU had met all the requirements under section 443(1) of the Act. The evidence provided by Mr. Stephen Bravo, the Organiser of the CEPU, supported the assertion that genuine bargaining efforts had been made. The court found CiVS to be an approved ballot agent, authorized to conduct the ballot. The court set the closing date for voting as 10 April 2024, which effectively established the ballot period. The decision also included a reordering of certain clauses in the proposed order to align with the Commission's standard drafting style. Another Member of the Commission was assigned to conduct the compulsory conciliation conference, and an order was issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established