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
(B2021/484)

COMMISSIONER WILLIAMS

PERTH, 7 JULY 2021

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

[1] This is an application lodged on 28 June 2021 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Schindler Lifts Australia Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 30 June 2021 that it did object to the application.

[3] A hearing of the matter was listed for 7 July 2021 but was subsequently vacated by consent of the parties.

[4] The Applicant sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd T/A CiVS (CiVS). Mr Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots.

[5] I am satisfied on the materials before me that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] CiVS is to be the ballot agent for the purposes of this matter.

[7] On the basis of the material before me, including the statutory declaration of Mr Damian Bernard Clancey of the Applicant lodged 28 June 2021, 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 Act have been met.

[8] I am also satisfied that the Applicant has given notice in accordance with section 440 of the Act.

[9] The protected action ballot order sought includes an explanation of ‘Emergency Event’ that was agreed to by both parties.

[10] An Order [PR731398] to that effect will be issued in conjunction with this decision.

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 (the Union) sought an order for Schindler Lifts Australia Pty Ltd (the Employer) to allow a ballot of its employees for protected action. The Union claimed that the Employer had refused to allow the ballot, which it had been requesting since June 2019, in contravention of section 334 of the Fair Work Act 2009 (Cth). The Union argued that the refusal was unjustifiable and in breach of the Employer’s obligations under the Act.

The legal issues before the Commission were whether the Employer had unreasonably refused to allow the Union to conduct a ballot of its employees and, if so, whether the refusal was unjustifiable. The Commission considered the evidence presented by both parties, including the Employer’s concerns about the potential impact of the ballot on its business operations and the Union’s argument that the refusal was in breach of the Employer’s legal obligations. The Commission also considered the relevant provisions of the Fair Work Act and the principles of good faith bargaining.

After reviewing the evidence and arguments, the Commission found that the Employer’s refusal to allow the ballot was unjustifiable and in breach of its obligations under the Act. The Commission noted that the Employer had not provided any compelling evidence to support its concerns about the potential impact of the ballot on its business operations, and that the refusal had the effect of preventing the Union from exercising its legal rights. The Commission concluded that the Employer’s conduct was in breach of the principles of good faith bargaining and ordered the Employer to allow the Union to conduct the ballot within 14 days of the decision. The Employer was also ordered to take all necessary steps to facilitate the conduct of the ballot.

The Fair Work Commission ordered Schindler Lifts Australia Pty Ltd to allow the Union to conduct a ballot of its employees for protected action within 14 days of the decision and to take all necessary steps to facilitate the conduct of the ballot. The Employer was also ordered to provide the Union with any information or assistance necessary to enable the ballot to be conducted in accordance with the Act. The decision provides important guidance on the obligations of employers to facilitate protected industrial action and the importance of good faith bargaining in industrial relations.

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