Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Otis Elevator Company Pty Limited

[2023] FWC 1335

[2023] FWC 1335

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

Otis Elevator Company Pty Limited

(B2023/528)

DEPUTY PRESIDENT CROSS SYDNEY, 7 JUNE 2023

Proposed protected action ballot of employees of Otis Elevator Company Pty Limited

1. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) is a bargaining representative in relation to a proposed enterprise agreement that will cover certain employees of Otis Elevator Company Pty Limited (the Respondent). On 2 June 2023, the CEPU made an application (the Application) under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Otis Elevator Company Pty Limited (Respondent).

1. The Respondent opposed the Application on the basis that the genuine consideration requirements of s.228 of the Act had not been met in relation to the proposed enterprise agreement, based on:

(a)   insufficient meetings for genuine consideration of other proposals;

(b)   insufficient time for genuine consideration of the Respondent’s offer to employees;

(c)   the continued review by the Respondent of superannuation and a proposed Income Protection Policy; and

(d)   a misunderstanding of components of the Respondent’s offer

1. The matter was allocated to my Chambers on 5 June 2023, and directions were issued, with a compressed timetable for the filing of materials, and the matter was listed for hearing on 7 June 2023 (the Hearing).

1. At the conclusion of the Hearing, I advised the parties that I had formed the view that the CEPU was genuinely trying to reach an agreement, and I would issue the PABO in an amended form. The amended form of the PABO resulted both from concessions made by the CEPU and the Respondent, and from my reasons for decision. I further indicated that the reasons for my decision would be provided promptly. This decision is an edited version of the transcript of those reasons.

1. An application for a protected action bargaining order was made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) on 2 June 2023 in relation to negotiations occurring for a replacement of the Otis Elevator Company Pty Ltd (New South Wales) (Construction and Service Employees) Enterprise Agreement 2019. Negotiations had been occurring between the parties for some three months and five bargaining meetings have occurred with a further bargaining meeting to occur this Friday 9 June 2023.

1. The respondent, Otis Elevator Company Pty Ltd, has objected to the issuing of a protected action bargaining order on the basis that pursuant to section 228(1)(d) that the applicant has not met the good faith bargaining requirements, because it has not been giving genuine consideration to the proposals of other bargaining representatives for the proposed agreement, and giving reasons for the bargaining representatives’ responses to those proposals.

1. In responding to any challenge to good faith bargaining the applicant carries the burden of proving that it has genuinely been trying to reach agreement. That was referred to in John Holland v AFMEGKIU [2010] 194 IR 239. The applicant led evidence from Mr Mitchell Johnston, recruitment officer of the CEPU, that gave detail in relation to the negotiations that have been occurring in relation to the proposed agreement. Mr Johnston was cross-examined in the proceedings and that was, subject to other elements of fact that were put in submissions, the only evidence before the Commission.

1. As noted by the applicant the Full Federal Court in JJ Richards & Sons v Fair Work Australia provided detailed consideration in relation to what was required in the application of section 443(1) of the Act. Particularly Flick J observed:

It is ultimately concluded that section 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an applicant is genuinely trying to reach an agreement with the employer unless, point 1: an applicant has approached the employer and informed the employer of the general ambit of that for which the agreement is sought; and point 2: the employer has foreshadowed - even in the most general terms - its attitude to the proposed agreement.

[Emphasis added]

1. I note that Flick J went on to say that more may be required, and it will depend on the factual scenario in each case.

1. It is abundantly clear that in the factual scenario of this particular matter, the parties have gone well past the two points identified by Flick J. It is certainly the case that bargaining is not at a standstill, but there is absolutely no need for parties to get to such a point before contemplation or issuing of a PABO can occur.

The Issues for Determination

1. Three particular points of objection of the respondent were that there had been;

(1)       consideration of a PABO before a log of claims had been received from the
           union;

(2)       that only two bargaining meetings had occurred before there was consideration
           of a PABO; and

(3)       that the application was made on the same day as the last meeting, being 2 June
           2023.

1. I consider the first of those two points to be somewhat dated considering that there have been a number of bargaining meetings since where there has been clear concessions and offers put, or disagreements made clear between the parties.

1. As to the last point, that there should be some pejorative determination in relation to an application having been made in the afternoon upon which the last bargaining meeting occurred in the morning, it misconstrues what must be proven before the obligation on the Commission to make a protected action bargaining order can be made.

1. The protected action bargaining order only sets in train a process by which an election is conducted, and employees are able to vote on whatever forms of action might be proposed. Thereafter there is a process of in fact notification of whatever industrial action might be proposed there having been positive votes in relation to various questions. That is a process that takes some weeks, and it is not a process that can be curtailed simply because an applicant in pursuit of its rights under the Act sets in train a process that will take some weeks to have the PABO determined.

Conclusion

1. In those circumstances I reject the objection of the respondent. In relation to the issuance of the PABO I find that the applicant has in fact been bargaining in good faith, as has the respondent, and in those circumstances, I intend to issue the PABO in the form as proposed by the applicant.

DEPUTY PRESIDENT

Appearances:

Mr Kentish, A (for the Applicant)
Mr Padgham, P (for the Respondent)

Hearing details:

Wednesday 7 June at 10:00AM (In-Person)

Printed by authority of the Commonwealth Government Printer

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