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

[2022] FWC 1895

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 T/A Kone

(B2022/704)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 JULY 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 19 July 2022, my Associate was advised that the Respondent 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 Ms Chelsea Hill 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 PR743952.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting as the applicant, sought an order from the Fair Work Commission for a ballot of its members employed by Kone Elevators Pty Ltd, trading as Kone, to authorise protected industrial action. The union claimed that it had been genuinely attempting to reach an agreement with the employer regarding a proposed agreement, and that the necessary notification period under the Fair Work Act 2009 had been satisfied. The employer, Kone Elevators Pty Ltd, did not object to the application, resulting in the Deputy President determining the matter on the papers without the need for a hearing.

The primary legal issue before the court was whether the union had fulfilled the conditions set forth in section 437 of the Fair Work Act 2009 for conducting a ballot of its members for protected industrial action. The court had to consider the union's declaration, which outlined the steps taken in bargaining with the employer, and whether the union had genuinely attempted to reach an agreement with the employer. Additionally, the court needed to confirm if the notification period in relation to the proposed agreement had been met, as required by section 443(1) of the Act.

The Deputy President found that the union had genuinely attempted to reach an agreement with the employer, as evidenced by the declaration of Ms Chelsea Hill. Furthermore, the court was satisfied that the notification period in relation to the proposed agreement had been met, and that the requirements of section 443(1) of the Act were fulfilled. Consequently, the Deputy President determined that the application for a ballot order should be granted.

An order has been separately issued in PR743952, authorising the union to conduct a ballot of its members employed by Kone Elevators Pty Ltd for protected industrial action. This decision enables the union to proceed with the ballot, subject to the terms and conditions set out in the order.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established