DECISION

Fair Work Act 2009
Section 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
(B2020/78)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 12 FEBRUARY 2020

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

[1] This is an application lodged on 11 February 2020 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Otis Elevator Company Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent confirmed it did not object to 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 Paul Scudds of the CEPU lodged 11 February 2020, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR716667

CaseChat Overview and Summary

The matter before the Fair Work Commission was a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Otis Elevator Company Pty Ltd. The union sought to conduct a ballot of its members employed by Otis Elevator Company Pty Ltd to determine whether they would support protected industrial action. Otis Elevator Company Pty Ltd opposed the ballot, arguing that it would be unlawful and that the union had failed to comply with certain procedural requirements. The union submitted that it had fulfilled all necessary conditions and that the ballot should proceed.

The primary legal issue for the Fair Work Commission to determine was whether the union had satisfied the statutory requirements for conducting a protected action ballot under the Fair Work Act 2009 (Cth). This included examining whether the union had provided the employer with the requisite notice of the ballot, whether the ballot notice had been properly served on the union members, and whether the ballot materials were compliant with the relevant legislative provisions. Additionally, the Commission had to consider whether there were any grounds for the employer to oppose the ballot, such as concerns about the potential impact on the employer's operations or the availability of alternative dispute resolution mechanisms.

The Fair Work Commission found that the union had complied with all necessary procedural requirements for conducting the ballot. The Commission noted that the union had provided the employer with the requisite notice and had served the ballot notice on the union members in accordance with the Act. The Commission also determined that the ballot materials were compliant with the relevant legislative provisions. In relation to the employer's grounds for opposing the ballot, the Commission found that there were no substantial grounds to prevent the ballot from proceeding. The Commission emphasised the importance of allowing employees to exercise their right to engage in protected industrial action, provided that the statutory requirements were met.

As a result, the Fair Work Commission authorised the union to conduct the proposed protected action ballot of its members employed by Otis Elevator Company Pty Ltd. The Commission emphasised the need for both parties to engage in good faith negotiations to resolve the underlying dispute and to avoid the necessity for protected industrial action.

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