Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Schindler Lifts Australia Pty Ltd

[2012] FWA 8031

[2012] FWA 8031

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Schindler Lifts Australia Pty Ltd
(B2012/1599)

COMMISSIONER DEEGAN CANBERRA, 17 SEPTEMBER 2012

Proposed protected action ballot by employees of Schindler Lifts Australia Pty Ltd

[1] This decision relates to an application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the union) on 13 September 2012, for a protected action ballot of employees of Schindler Lifts Australia Pty Ltd. The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] This matter was listed for hearing, which was to take place today. However, the employer has advised the Tribunal that it does not intend to oppose the application. Accordingly I have determined the matter on the basis of the documentation filed by the union.

[3] The relevant employees of the employer are currently covered by the Schindler Lifts Australia Pty Ltd (ACT Branch) Certified Agreement 2009 - 2011, which had a nominal expiry date of 31 December 2011. Negotiations are currently taking place in relation to a new enterprise agreement.

[4] The union seeks to ballot members of the union who are employees of the employer who will be covered by the proposed enterprise agreement and who the union represents as a bargaining representative, excluding those who are covered by an individual agreement-based transitional instrument that has not passed its nominal expiry date (unless a conditional termination of the instrument has been made).

[5] The relevant section of the Act, s.443, provides as follows:

443 When FWA must make a protected action ballot order

(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

[6] I am satisfied that the application has been made in accordance with s.437 of the Act.

[7] In support of the application, the union filed a statement that was provided by Mr Neville Betts, an organiser from the union.

[8] According to Mr Betts, the union has participated in approximately ten meetings with the employer and has been willing to discuss all claims with the employer and has considered all offers and counter offers that have been put by the employer.

[9] For the purposes of s.443(1)(b) of the Act, I am satisfied that the applicant has been and is, genuinely trying to reach an agreement with the employer of the employees whom are to balloted.

[10] As ss.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. That Order [PR529269] is issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR529268>