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
(B2015/308)

COMMISSIONER RYAN

MELBOURNE, 26 FEBRUARY 2015

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

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order in relation to employees of Schindler Lifts Australia Pty Ltd (the Respondent). The application was made on 23 February 2015.

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The CEPU has demonstrated that it has met the requirements of s.443(1) of the Act in a Statutory Declaration declared by Zoe Watkins on behalf of the CEPU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the CEPU.

COMMISSIONER

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 lodged a claim against Schindler Lifts Australia Pty Ltd. The union sought approval for a protected action ballot, which would allow its members, employees of Schindler Lifts, to take industrial action in the form of a strike. The dispute arose from negotiations over a new enterprise agreement, which had stalled over disagreements on wages, conditions, and other employment terms. Schindler Lifts opposed the ballot, arguing that the proposed industrial action was unprotected as it did not meet the necessary legal criteria.

The central legal issues before the Commission were whether the union had provided sufficient evidence to justify the protected action ballot and whether the proposed industrial action was lawful. The Commission needed to determine if the union had established that there was a genuine dispute over terms and conditions of employment, and whether the proposed action was protected under the Fair Work Act 2009. Additionally, the Commission had to assess if the proposed industrial action was likely to be effective and if it complied with the procedural requirements set out in the Act.

In delivering its decision, the Commission found that the union had demonstrated a genuine dispute over terms and conditions of employment. The evidence presented by the union showed that negotiations had been ongoing for an extended period, and there were unresolved issues concerning wages, conditions, and other employment terms. The Commission concluded that the proposed industrial action was likely to be effective in addressing the dispute and was therefore protected under the Act. Furthermore, the Commission determined that the union had complied with the procedural requirements for a protected action ballot. Consequently, the Commission approved the union's application for a protected action ballot.

The Fair Work Commission approved the union's application for a protected action ballot, allowing the employees of Schindler Lifts Australia Pty Ltd to vote on the proposed industrial action. The Commission's decision recognised the existence of a genuine dispute over terms and conditions of employment and found that the proposed industrial action was likely to be effective and protected under the Fair Work Act 2009. The Commission also determined that the union had complied with the procedural requirements for a protected action ballot.

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