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

[2022] FWC 2316

FAIR WORK COMMISSION

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

(B2022/1303)

VICE PRESIDENT CATANZARITI

SYDNEY, 31 AUGUST 2022

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

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 Schindler Lifts Australia Pty Ltd (Respondent).

On 31 August 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Steve Bankes of the Applicant declared on 30 August 2022, setting out the steps taken by it in bargaining with the Respondent and 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 s.443(1) of the Act have been met.

An Order has been separately issued in PR745359.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application under section 437 of the Fair Work Act 2009 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Schindler Lifts Australia Pty Ltd. The union sought an order to conduct a ballot of its members regarding potential protected action due to unresolved disputes in bargaining for a new enterprise agreement. The application was made without opposition from Schindler Lifts Australia Pty Ltd.

The primary legal issue for the Commission was to determine whether the union had met the criteria stipulated under section 443 of the Fair Work Act, which requires a union to genuinely attempt to reach an agreement with the employer before calling for a protected action ballot. Additionally, the Commission had to ascertain if the union's application complied with the procedural requirements set out in the Fair Work Act.

The Commission, having reviewed the statutory declaration submitted by the union and other relevant materials, found that the union had indeed been genuinely attempting to reach an agreement with Schindler Lifts Australia Pty Ltd. The union provided evidence of its efforts in bargaining and compliance with the notification period as mandated by the Act. Given the lack of opposition from the employer and the union's compliance with the legislative requirements, the Commission decided to proceed with the matter on the basis of the submitted documentation without the need for a hearing. Consequently, the Commission issued an order allowing the union to proceed with the ballot as requested.

The Fair Work Commission granted the union's application for a protected action ballot order, thus enabling the union to proceed with the ballot of its members regarding the proposed enterprise agreement.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established