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

[2025] FWC 1935

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

Otis Elevator Company Pty Ltd

(B2025/1088)

DEPUTY PRESIDENT LAKE

BRISBANE, 7 JULY 2025

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

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

I note that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) have made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

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 Jack Mawson Hargreaves, AMWU Organiser, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Otis I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 21 July 2025[2]. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR788962.

I will conduct the s.448A compulsory conciliation conference and issue the Order requiring attendance for conference.

DEPUTY PRESIDENT

[1] B2025/1096

[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) seeking a protected action ballot order for certain employees of Otis Elevator Company Pty Ltd (Otis). The application was made under section 437 of the Fair Work Act 2009 and related to a proposed agreement that was the subject of ongoing negotiations. The Australian Manufacturing Workers’ Union (AMWU) had also made a separate application for a ballot order regarding the same proposed agreement. The Deputy President, Lake, determined the matter on the papers without the need for a hearing. The Commission was satisfied that all requirements under section 443(1) of the Act had been met, including the notification period for the proposed agreement and the AMWU's efforts in bargaining with Otis.

The legal issues before the Commission were whether the notification period for the proposed agreement was valid and whether all procedural requirements under the Fair Work Act had been fulfilled to permit the conduct of a protected action ballot. The Deputy President had to consider the evidence provided by the AMWU, including the declaration of Jack Mawson Hargreaves, AMWU Organiser, which outlined the union's attempts to reach an agreement with Otis. Additionally, the Commission needed to approve the ballot agent, Democratic Outcomes Pty Ltd (CiVS), and set a closing date for the ballot voting period.

The reasoning of the Deputy President involved confirming that CiVS was an approved ballot agent under section 468A of the Act. The Deputy President determined the closing date for voting to be 21 July 2025, which aligned with the period sought in the application and effectively set a 10 working day voting period. The Deputy President also scheduled a compulsory conciliation conference under section 448A of the Act. Given the evidence and procedural compliance, the Commission issued the necessary Order to proceed with the ballot. The decision was separate from another Order issued in PR788962, which pertained to the AMWU’s application.

The final orders included the approval of the ballot agent, Democratic Outcomes Pty Ltd, the setting of a closing date for voting of 21 July 2025, and the scheduling of a compulsory conciliation conference. These orders enabled the ballot to proceed in accordance with the provisions of the Fair Work Act, ensuring that the process for the proposed agreement was carried out within the legal framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established