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

[2023] FWC 3186

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

(B2023/1323)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 1 DECEMBER 2023

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).

On 1 December 2023, the Commission was advised that KONE, in effect, did not 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 Michael Anderson on behalf of the CEPU, 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 Australian Electoral Commission. 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 17 January 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR768912.

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 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] This is, in effect, 30 working days from the making of the Order, as sought in the application. This is also the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order concerning certain employees of KONE Elevators Pty Ltd. KONE did not object to the application, allowing the Commission to decide the matter on the provided documentation without a hearing. The CEPU sought to conduct a ballot to authorize potential industrial action, as permitted under Section 437 of the Fair Work Act 2009. The primary legal issue before the Commission was whether the CEPU met all the necessary requirements to hold a ballot, including demonstrating genuine attempts to negotiate with the employer and complying with the notification periods stipulated in the Act.

The Deputy President concluded that the CEPU had demonstrated a genuine attempt to reach an agreement with KONE and had complied with the notification requirements. The Commission was satisfied that all conditions under Section 443(1) of the Fair Work Act were fulfilled, thereby permitting the ballot to proceed. The Commission also determined that the voting period should close on 17 January 2023, aligning with the timeframe requested by the CEPU and the administrative needs of the Australian Electoral Commission, which would conduct the ballot. This decision also set the ballot period for the purposes of Section 448A(2) of the Act. Furthermore, the Commission decided to assign another member to conduct a compulsory conciliation conference to facilitate further negotiations between the parties.

In light of the findings, the Fair Work Commission granted the application and ordered that the ballot be conducted by the Australian Electoral Commission. The closing date for voting was set as 17 January 2023. Another member of the Commission would oversee the compulsory conciliation conference to ensure meaningful negotiations between the CEPU and KONE. This decision underscores the importance of adhering to the statutory requirements for protected industrial action and the Commission's role in facilitating fair bargaining processes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established