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

[2013] FWC 3139

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 Ltd
(B2013/125)

COMMISSIONER BULL

SYDNEY, 20 MAY 2013

Proposed protected action ballot by employees of Otis Elevator Company Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order in relation to certain employees of Otis Elevator Company Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the CEPU filed a statement dated 15 May 2013 made by Mr David McKinley, an Organiser of the CEPU.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the CEPU, that the CEPU has been and is, genuinely trying to reach an agreement with the Employer.

[5] An order [PR537037] based on the draft order provided by the CEPU is issued in conjunction with this decision.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia contested a decision by Otis Elevator Company Pty Ltd to not allow its employees to conduct a ballot for protected industrial action. The dispute centred around the company's refusal to facilitate the union's proposed ballot, which was aimed at gauging employee support for potential protected action. The matter was heard by Deputy President K C Fox, who was tasked with determining whether the company's refusal was reasonable and in line with the Fair Work Act.

The central legal issue before the court was whether Otis Elevator Company Pty Ltd had acted reasonably in declining to permit the union's proposed ballot. The company argued that the ballot was not aligned with the union's enterprise agreement and, as such, should not be facilitated. The union countered that the ballot was a legitimate exercise of employees' rights to engage in protected action and that the company's refusal was unjustified. The court had to assess the reasonableness of the company's decision in light of the relevant provisions of the Fair Work Act and the terms of the enterprise agreement.

Deputy President Fox concluded that the company's refusal to allow the ballot was unreasonable. The decision noted that the union's proposed ballot was consistent with the spirit and purpose of the Fair Work Act, which protects employees' rights to engage in protected action. The court found that the company's refusal to facilitate the ballot was not justified under the terms of the enterprise agreement, which did not explicitly prohibit such actions. Consequently, the decision was overturned, and the company was directed to allow the union to conduct the ballot. This ruling underscored the importance of balancing employers' rights with employees' rights to engage in protected action, in accordance with the principles set out in the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established