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

[2022] FWC 1441

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

KONE Elevators Pty Ltd

(B2022/527)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 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 (Act) for a protected action ballot order in relation to certain employees of KONE Elevators Pty Ltd (the Respondent).

On 6 June 2022, my Associate was advised that the Respondent objected to the application.

On 7 June 2022 I held a Mention where the Respondent withdrew its objection.

In the circumstances, I have decided to determine the matter on the papers.

On the basis of the material before me, including the declaration of Paul Scudds of the Applicant 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 PR742427.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) under section 437 of the Fair Work Act 2009 for an order allowing a protected action ballot of certain employees of KONE Elevators Pty Ltd (KONE). The Union sought to conduct a ballot of its members employed by KONE, concerning potential protected actions such as strikes or other industrial action. Initially, KONE had objected to the application; however, this objection was withdrawn during a mention held on 7 June 2022. As a result, the Deputy President determined the matter based on the provided documentation.

The primary legal issue for the court was whether the Union had satisfied the statutory requirements under section 437 of the Act to conduct a protected action ballot. This included verifying if there was a notification period for the proposed agreement and ensuring compliance with the conditions outlined in section 443(1) of the Act. The Union needed to demonstrate that it had genuinely attempted to reach an agreement with KONE and had met the notification period before proceeding with the ballot.

The Deputy President reviewed the declaration by Paul Scudds of the Union, which outlined the steps taken during the bargaining process and confirmed the Union's genuine efforts to reach an agreement with KONE. Based on the material presented, the Deputy President concluded that the Union had met the notification period and fulfilled the requirements under section 443(1) of the Act. Consequently, the application for a protected action ballot order was approved.

In summary, the Fair Work Commission granted the Union's application, allowing the proposed ballot of employees to proceed. The court found that the Union had demonstrated compliance with the necessary statutory requirements, thereby satisfying the conditions for conducting the ballot under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established