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
(B2019/402)

DEPUTY PRESIDENT DEAN

SYDNEY, 21 MAY 2019

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 (CEPU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Otis Elevator Company Pty Ltd (Respondent).

[2] On 21 May 2019, 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 Benjamin Lister of the CEPU declared on 20 May 2019, setting out the steps taken by them in bargaining with the Respondent and that they have 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 PR708522.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia brought an application against Otis Elevator Company Pty Ltd concerning a proposed industrial action ballot. The union sought an order that the company was required to facilitate a protected action ballot of its employees. The ballot was intended to gauge employee support for potential protected action in response to the company's proposal to dismiss employees and re-engage them on less favourable terms. The company opposed the application, arguing that the ballot would interfere with its business operations and that the union had not followed the proper procedures for conducting such a ballot.

The legal issues before the Commission included whether the union had complied with the relevant provisions of the Fair Work Act 2009 and whether the proposed ballot would unduly interfere with the company's operations. The Commission considered whether the union had provided sufficient notice and information to the company and its employees and whether the ballot was reasonably necessary to protect the employees' interests. The company argued that the union's proposed ballot was not reasonably necessary because the employees had already been provided with information about the proposed changes to their employment terms and conditions, and that the ballot would cause unnecessary disruption to the company's business operations.

The Commission found that the union had complied with the relevant provisions of the Act and that the proposed ballot was reasonably necessary to protect the employees' interests. The Commission noted that the proposed changes to the employees' terms and conditions were significant and that the employees needed an opportunity to express their views on the proposed changes through a protected action ballot. The Commission also found that the company had been provided with sufficient notice and information about the proposed ballot and that the ballot would not cause undue interference with the company's operations. The Commission ordered the company to facilitate the proposed ballot and to provide the union with the necessary information and access to the employees to enable the ballot to be conducted properly.

The Commission ordered the company to facilitate the proposed protected action ballot of its employees and to provide the union with the necessary information and access to the employees to enable the ballot to be conducted properly. The Commission also ordered the company to provide the union with a list of all its employees and their contact details and to allow union representatives access to the company's premises to conduct the ballot. The company was ordered to provide the union with access to its email system to enable the union to communicate with its employees about the ballot. The company was further ordered to provide the union with any other information that the union may require to conduct the ballot properly.

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