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

[2022] FWC 766

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

(B2022/276)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 6 APRIL 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 (Act) for a protected action ballot order in relation to certain employees of Schindler Lifts Australia Pty Ltd (the Respondent).

On 6 April 2022, my Associate was advised that the Respondent did not object to 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 declaration of Ms Chelsea Hill of the Applicant 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 PR740064.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) for a protected action ballot order in relation to certain employees of Schindler Lifts Australia Pty Ltd (Schindler). The Union sought the order under section 437 of the Fair Work Act 2009 to allow its members to vote on taking protected industrial action. The application was made on the basis that the Union had been genuinely attempting to negotiate an enterprise agreement with Schindler but had been unable to reach an agreement.

The key legal issue for the Commission was whether the Union had satisfied the criteria for being granted a ballot order under section 437 of the Fair Work Act. The Union needed to demonstrate that there was a notification time in relation to the proposed agreement and that it had been genuinely attempting to reach an agreement with Schindler. The Union provided a declaration from Ms Chelsea Hill outlining the steps taken in bargaining and that it had been genuinely trying to reach agreement with Schindler. The Commission also noted that Schindler did not object to the application.

The Commission found that the Union had satisfied the requirements for being granted a ballot order. The Union had provided evidence of its attempts to negotiate an agreement with Schindler and that it had been genuinely attempting to reach an agreement. The Commission was satisfied that a notification time in relation to the proposed agreement existed and that the requirements of section 443(1) of the Act had been met. Therefore, the application for a ballot order was granted.

The Commission issued an order permitting the Union to hold a ballot of its members on whether to take protected industrial action. The order was issued in PR740064.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established