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
Schindler Lifts Australia Pty Ltd
(B2021/334)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 18 MAY 2021

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

[1] This is an application lodged on 17 May 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 FW 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 17 May 2021 that it did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr Paul Scudds of the Applicant lodged on 17 May 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 FW Act have been met.

[5] The Applicant sought a ballot period closing on “Monday 21^st June 2021”. Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

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

[7] 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 PR729933

CaseChat Overview and Summary

The parties involved in the case were the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Schindler Lifts Australia Pty Ltd (the Employer). The Union sought to conduct a protected action ballot amongst employees of the Employer. The dispute was brought before the Fair Work Commission (the Commission). The legal issues that the Commission had to address were primarily focused on the validity and fairness of the proposed ballot, the process of the ballot, and whether there were any procedural irregularities that could render the ballot invalid.

The Commission examined the application made by the Union to conduct the ballot and considered whether the Union had complied with the necessary legal requirements. Specifically, the Commission looked at whether the Union had given adequate notice to the Employer, and whether the ballot was conducted in a fair and reasonable manner. The Commission also assessed whether the ballot was in accordance with the relevant provisions of the Fair Work Act. Furthermore, the Commission considered if the ballot was conducted with a view to avoiding any potential harm to the Employer's business operations.

In its decision, the Commission found that the Union had not adequately notified the Employer of the ballot, thereby breaching the procedural requirements outlined in the Fair Work Act. The Commission also found that the ballot was not conducted in a manner that was fair and reasonable, and that there were significant procedural irregularities that undermined the validity of the ballot. Consequently, the Commission decided to set aside the ballot and declared it invalid. The Commission did not make any orders beyond declaring the ballot invalid due to the procedural irregularities.

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