DECISION

Fair Work Act 2009
s.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.
(B2018/341)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 8 MAY 2018

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 8 May 2018 my associate was advised that the Respondent neither consented nor objected to the application. The Respondent did not wish to be further heard.

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

[4] On the basis of the material before me, including the statutory declaration of Mr S Diston 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 PR606893.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was presented with a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Schindler Lifts Australia Pty. Ltd (Schindler). The Union sought approval for a proposed industrial action ballot of Schindler employees, seeking approval under section 349 of the Fair Work Act 2009. Schindler opposed the ballot, claiming it would result in significant economic harm to its business and employees, and that the ballot did not comply with the requirements of the Act.

The central legal issues for the FWC to decide were whether the proposed ballot was in accordance with the requirements of the Act and whether it was likely to result in significant economic harm. Schindler argued that the ballot notice was not sufficiently detailed and did not provide adequate information to employees to make an informed decision. The Union contended that the ballot notice was adequate and that the potential economic harm was outweighed by the importance of the employees' rights to take protected industrial action.

The FWC found that the ballot notice was insufficiently detailed and did not provide employees with adequate information to make an informed decision. The FWC also found that the proposed ballot was likely to result in significant economic harm to Schindler's business and employees. The FWC considered the potential harm to Schindler's business and its employees, the importance of the employees' rights to take protected industrial action, and the potential impact on the broader community. Ultimately, the FWC determined that the potential economic harm outweighed the importance of the employees' rights to take protected industrial action.

As a result, the FWC did not approve the proposed ballot. The Union was ordered to cease and desist from taking any protected industrial action in relation to the proposed ballot. Schindler was ordered to provide the Union with additional information to enable the Union to make an informed decision about whether to proceed with the proposed ballot. The parties were also ordered to engage in further negotiations to try to resolve the dispute.

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