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

[2022] FWC 1657

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

KONE Elevators Pty Ltd

(B2022/610)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 JUNE 2022

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 (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of KONE Elevators Pty Ltd (Respondent).

On 26 June 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of James Darnton-Turner of the Applicant declared on 23 June 2022, 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.

An Order has been separately issued in PR743121.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) applied to the Fair Work Commission for an order under the Fair Work Act 2009 for a ballot of the employees of KONE Elevators Pty Ltd. The Union sought to organise a protected action ballot in relation to its members employed by the Respondent. The application was made under section 437 of the Fair Work Act, which allows the Commission to order a ballot where an applicant has satisfied certain conditions, including that there has been a failure to reach agreement in good faith in relation to a proposed agreement. The Respondent did not oppose the application.

The legal issue before the Commission was whether the Union had satisfied the requirements for the Commission to make an order for a protected action ballot. In particular, the Commission had to determine whether the Union had genuinely attempted to reach an agreement with the employer and whether the notification time in relation to the proposed agreement had passed. These are the statutory conditions that must be satisfied for the Commission to make an order for a protected action ballot.

The Vice President of the Fair Work Commission found that the Union had satisfied the requirements for the making of an order. The Union had provided a statutory declaration from its representative setting out the steps taken in bargaining with the employer and that it had been, and was, genuinely trying to reach agreement with the employer. The Vice President was satisfied that the Union had genuinely attempted to reach an agreement and that the notification time in relation to the proposed agreement had passed. Accordingly, the Vice President made an order for a ballot of the employees of the employer.

The Fair Work Commission made an order for a ballot of the employees of KONE Elevators Pty Ltd. The order was made under section 437 of the Fair Work Act and an Order has been separately issued in PR743121.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established