Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Schindler Lifts Australia Pty Ltd
[2025] FWC 2985
•7 OCTOBER 2025
| [2025] FWC 2985 |
| 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
(B2025/1539)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 7 OCTOBER 2025 |
Proposed protected action ballot of employees of Schindler Lifts Australia Pty Ltd – non-AEC ballot agent electronic voting
This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (ETU or 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 (Schindler Lifts or Employer).
On 3 October 2025, the Commission was advised that the Employer objected to several of the questions raised in the proposed action. I therefore listed the matter for hearing on 7 October 2025 in relation to the ballot questions.
The Employer initially objected to three questions, but this was reduced to two questions when the ETU agreed to withdraw one of these questions from the proposed order.
The Employer objected to the following questions in the application:
In support of reaching an enterprise agreement with your employer, do you authorise the taking of protected industrial action against your employer, which may involve taking separately, concurrently and/or consecutively any or all the actions set out below:
1. An unlimited number of stoppages of work between 1 and 72 hours duration?
Yes [ ] No [ ]
5. An unlimited number of periodic and/or indefinite partial work bans?
Yes [ ] No [ ]
The Employer submitted that these questions lack the degree of specificity required by s.443(3)(d) and do not describe the industrial action in such a way that employees are capable of responding to them.
Consideration
Section 437 of the FW Act provides,
437 Application for a protected action ballot order
Who may apply for a protected action ballot order
(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.
(2) Subsection (1) does not apply if the proposed enterprise agreement is:
(a) a greenfields agreement; or
(b) a cooperative workplace agreement.
(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.
Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).
Matters to be specified in application
(3) The application must specify:
(a) the group or groups of employees who are to be balloted; and
(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action; and
(c) the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.
Note: The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.
(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:
(a) will be covered by the proposed enterprise agreement; and
(b) either:
(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or
(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.
Documents to accompany application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.
Section 443 of the FW Act provides,
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.
(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).
(3) A protected action ballot order must specify the following:
(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action;
(e) the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;
(f) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days or 120 hours (whichever is applicable), the protected action ballot order may specify a longer period of up to 7 working days.
Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.
The issue of ballot questions was dealt with by a Full Bench in John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union.[1] In its decision, the Full Bench said:
Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.[2]
This approach was endorsed in National Tertiary Education Industry Union v Curtin University.[3] In that case, the Full Bench said:
In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling “informed consent” goes beyond the text of the provision and constitutes a gloss on the statute. The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued). We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed.[4]
Having regard to the submissions of the parties and the material before me, I find that the nature of the proposed industrial action is clearly articulated in Questions 1 and 5 and that there is nothing unclear or ambiguous in either of these questions.
Question 1 is in broad terms and requests whether employees agree to ‘an unlimited number of stoppages of work between 1 and 72 hours duration’. The risk for the ETU in posing such a broad question is that members who support a 1 or 2 hour stoppage but do not support a 72 hour stoppage may answer ‘no’ to the question rendering stoppages of any duration not protected by the ballot. However, the broad range of action contemplated by the question does not render it ambiguous or incapable of being responded to.
Similarly, Question 5 is in very wide terms and requests whether employees agree to ‘an unlimited number of periodic and/or indefinite partial work bans.’ The Employer submitted that as the bans are not specified, employees will not be aware what they are agreeing to. I do not accept this submission as employees will necessarily be familiar with the range of tasks their respective roles entail. The question contemplates an unlimited number of periodic and/or indefinite partial ban on any or all of those tasks. Like Question, 1, the broad range of action contemplated by Question 5 does not render it ambiguous or incapable of being responded to.
There is no requirement that the questions are specific about the precise form of the industrial action but rather that the nature of the proposed action is described in a manner that employees are able to respond to. I find that Questions 1 and 5 meet these requirements and I have decided that these questions will be included in the order sought by the ETU.
On the basis of the material before me, including the declaration of Jake Sutton, Organiser, setting out the steps taken by the ETU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Schindler Lifts, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.
The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 21 October 2025.[5] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR792433.
This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
[1] [2010] FWAFB 526.
[2] Ibid, [19].
[3] [2022] FWCFB 204
[4] Ibid, [53]
[5] This is, in effect, 10 working days from the making of the Order and was the date sought in the application.
Printed by authority of the Commonwealth Government Printer
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