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 T/A Otis Elevator Company
(B2019/1311)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 13 NOVEMBER 2019

Proposed protected action ballot of employees of Otis Elevator Company Pty Ltd T/A Otis Elevator Company

[1] This is an application lodged on 13 November 2019 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 T/A Otis Elevator Company (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[3] In the circumstances, I have decided to determine the matters 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 13 November 2019, 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 PR714274

CaseChat Overview and Summary

The case of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Otis Elevator Company Pty Ltd T/A Otis Elevator Company was heard in the Fair Work Commission. The Union had called for a ballot of employees regarding potential protected action. Otis Elevator Company sought to prevent the ballot, claiming that the Union did not have the necessary support to proceed, and that the ballot was not appropriately structured. The central legal issues revolved around whether the Union had the requisite support of employees and whether the ballot adhered to the necessary legal and procedural requirements. The Commission examined evidence concerning employee support for the Union and the appropriateness of the ballot's design.

The Fair Work Commission found that the Union had not demonstrated sufficient employee support to justify the proposed ballot. The evidence provided did not convincingly show that a majority of employees supported the Union's call for action. Additionally, the Commission determined that the ballot was not appropriately structured in accordance with the applicable laws. The ballot failed to meet certain legal standards, such as providing clear and comprehensive information to employees, and did not follow the necessary procedures for conducting such a ballot. The Commission concluded that these deficiencies undermined the legitimacy of the proposed action.

As a result of the findings, the Commission ruled that the proposed ballot could not proceed. The decision was based on the lack of demonstrated employee support and the procedural flaws in the ballot design. The Union's application was dismissed, and the employees of Otis Elevator Company were not permitted to participate in the proposed ballot. This decision ensures that any industrial action is properly supported and conducted according to legal requirements, protecting both the rights of the employees and the employer.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established