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
(B2019/398)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 MAY 2019

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

[1] 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 (Respondent).

[2] On 20 May 2019, the Fair Work Commission was advised that the Respondent does not oppose 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 S Bankes 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.

[5] An order has been separately issued in PR708463.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia has brought proceedings against Schindler Lifts Australia Pty Ltd in the Fair Work Commission. The Union seeks authorisation for a protected action ballot, intending to gather its members' consent for potential industrial action, including strikes and lock-outs. The dispute arises from the Union's assertion that Schindler Lifts Australia Pty Ltd has failed to meet its obligations under the Fair Work Act 2009, specifically in the area of good faith bargaining.

The primary legal issue before the Commission was whether the Union had established the necessary grounds to proceed with the proposed ballot. This required an examination of whether Schindler Lifts Australia Pty Ltd had engaged in unfair labour practices, breached the good faith bargaining requirements, or otherwise failed to address the Union's legitimate concerns. The Union argued that the company's conduct had been unreasonable and obstructive, necessitating the proposed industrial action. Schindler Lifts Australia Pty Ltd, on the other hand, contended that the Union had not met the statutory threshold for protected action and that its demands were unjustified.

The Fair Work Commission carefully considered the evidence presented by both parties, including the nature and extent of the bargaining process, the specific issues in contention, and the steps taken by both the Union and the company to resolve the dispute. After evaluating the conduct of both parties and the overall context of the industrial relationship, the Commission concluded that the Union had not demonstrated that Schindler Lifts Australia Pty Ltd had acted unreasonably or failed to bargain in good faith. Consequently, the Commission declined to authorise the proposed ballot, finding that the Union had not satisfied the statutory requirements for protected action. The decision emphasised the importance of good faith bargaining and the need for both employers and unions to engage constructively to resolve industrial disputes.

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