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
(B2020/448)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 AUGUST 2020

Proposed protected action ballot of employees of Otis Elevator Company 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Otis Elevator Company Pty Ltd (Respondent).

[2] On 19 August 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of James Darnton-Turner of the Applicant declared on 18 August 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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 PR721988.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Otis Elevator Company Pty Ltd (Otis). The Union sought approval for a ballot of its members, who were employees of Otis, to vote on protected industrial action. Otis opposed the ballot, raising concerns about the potential impact on its operations and the process by which the Union sought to conduct the ballot.

The primary legal issues before the Commission were whether the ballot was for a protected action and whether it complied with the relevant provisions of the Fair Work Act 2009. The Commission needed to determine whether the Union's proposed action was protected action within the meaning of the Act, and whether the Union had followed the correct procedures in seeking to conduct the ballot. This included examining whether the Union had provided sufficient information to its members about the proposed action and the ballot.

The Fair Work Commission found that the proposed action was indeed protected action as it related to a dispute over an employee's conditions of employment. However, the Commission also found that the Union had not provided sufficient information to its members about the proposed action and the ballot. The Union had not included in its ballot paper a full and fair statement of the proposed action, as required by section 311 of the Fair Work Act. As a result, the Commission did not approve the ballot. The Commission emphasised the importance of ensuring that employees are properly informed about the nature of the proposed action and the ballot process to maintain fairness and transparency in industrial relations processes.

In light of the above, the Fair Work Commission did not approve the Union's proposed ballot. The decision underscores the importance of unions providing adequate information to their members when seeking to conduct a ballot for protected action. It also highlights the need for unions to comply with the specific requirements set out in the Fair Work Act to ensure that their members are fully informed about the proposed action and the ballot process.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established