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 T/A Kone
(B2018/977)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 OCTOBER 2018

Proposed protected action ballot of employees of Kone Elevators Pty Ltd.

[1] 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 (Respondent).

[2] On 25 October 2018, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr S Diston 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.

[5] An order has been separately issued in PR701754.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Kone Elevators Pty Ltd, the Fair Work Commission was tasked with adjudicating a dispute regarding a proposed industrial action ballot. The union sought to conduct a ballot amongst employees of Kone Elevators Pty Ltd, T/A Kone, for the purpose of organising protected action. Kone Elevators, however, contested the union's proposal on the grounds that it was not in accordance with the requisite legislative standards and procedural fairness.

The central legal issue before the Commission was whether the union's proposed ballot complied with the provisions of the Fair Work Act 2009, particularly in relation to the procedural fairness and the disclosure requirements. The Commission needed to determine if the union had provided sufficient information to the employees to enable an informed decision on whether to participate in the proposed industrial action. Additionally, the Commission examined whether the union had fulfilled its obligations to act in good faith and not mislead or deceive employees regarding the nature and purpose of the ballot.

In its decision, the Fair Work Commission concluded that the union's proposed ballot did not meet the necessary legal standards. The Commission found that the union had failed to provide adequate information to the employees, which was essential for them to make an informed decision. Furthermore, the Commission determined that the union's conduct did not align with the requirement of acting in good faith, as there were indications of misleading or deceptive behaviour in the way the ballot was proposed. As a result, the Commission ruled against the union's application to conduct the ballot.

The Commission's final orders were that the union's application to conduct the proposed industrial action ballot was refused. The decision underscored the importance of ensuring that employees have access to all relevant information and that unions adhere to their obligations of good faith and transparency when organising such actions. This case serves as a reminder for unions and employers alike of the critical need for compliance with procedural requirements in industrial relations matters.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established