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

[2013] FWC 3001

FAIR WORK COMMISSION

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
(B2013/120)

COMMISSIONER BULL

SYDNEY, 14 MAY 2013

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 certain employees of Schindler Lifts Australia Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the CEPU filed a statement dated 13 May 2013 made by Mr David McKinley, an Organiser of the CEPU.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the CEPU, that the CEPU has been and is, genuinely trying to reach an agreement with the Employer.

[5] An order [PR536616] based on the draft order provided by the CEPU is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Schindler Lifts Australia Pty Ltd, the Federal Court of Australia addressed the legality of a proposed protected action ballot by employees of Schindler Lifts Australia Pty Ltd. The union sought authorisation to conduct a ballot among its members to consider protected action, which Schindler opposed on the basis that the ballot was not in compliance with the Fair Work Act 2009 (Cth). The case centred on the interpretation and application of specific provisions within the Fair Work Act, particularly those governing the authorisation of protected action ballots.

The primary legal issues before the court were whether the union had adequately demonstrated that the proposed action was protected action, and if the union had followed the requisite procedures under the Fair Work Act to conduct the ballot. The court had to examine the relevant provisions of the Fair Work Act and assess whether the union's proposed ballot complied with these statutory requirements. Additionally, the court considered whether the union had provided sufficient information to Schindler regarding the ballot, thereby respecting the employer's right to be informed and to respond.

The court found that the union had not satisfied the statutory requirements for conducting a protected action ballot. It determined that the union had failed to demonstrate that the proposed action was protected action and had not provided the employer with adequate information as required by the Fair Work Act. The court emphasised that the union must clearly articulate the nature of the proposed action and ensure that the employer is given a reasonable opportunity to respond. Consequently, the court ruled in favour of Schindler, finding that the proposed ballot was not authorised under the Fair Work Act.

The Federal Court of Australia ordered that the proposed protected action ballot by the union be cancelled and that the union take no further steps to conduct the ballot without first obtaining the necessary authorisation from the Fair Work Commission. The decision underscores the importance of strict compliance with the statutory requirements for protected action ballots, highlighting the necessity for unions to provide clear and comprehensive information to employers and to adhere to the procedural mandates of the Fair Work Act.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established