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

Case •

[2025] FWC 2385

•

14 AUGUST 2025
[2025] FWC 2385

FAIR WORK COMMISSION
DECISION

Fair Work Act 2009

s.418 - Application for an order that industrial action by employees or employers stop etc.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Schindler Lifts Australia Pty. Ltd.

(C2025/7864)

COMMISSIONER WALKADEN

SYDNEY, 14 AUGUST 2025

s.418 - Application for an order that industrial action by employees or employers stop etc.- Allegations of unprotected industrial action –whether notice requirements in s414 have been complied with.

  1. This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia through its Electrical, Energy and Services Division (ETU or Applicant) made under section 418 of the Fair Work Act 2009 (FWAct) for an order directed at Schindler Lifts Australia Pty Ltd (Schindler). The draft order filed by the ETU with the application is reproduced below:

Pursuant to s.418 of the Fair Work Act 2009, the Fair Work Commission makes the following orders:

1. Schindler Lifts Australia Pty. Ltd is to stop, and must not take, any industrial action that is referred to in its correspondence to its employees of 7 August 2025 (the Industrial Action);

2. Schindler Lifts Australia Pty. Ltd is to stop, and must not take, the Industrial Action for a period of thirty days from the date of this Order.

  1. Schindler’s correspondence dated 7 August 2025 that is referred to in the draft order filed by the ETU[1] is reproduced below:

Schindler Lifts Australia Pty. Ltd.
Management

7 August 2025

NOTICE OF EMPLOYER RESPONSE ACTION

Section 414(5)(a) Fair Work Act 2009 (Cth)
Notice to Bargaining Representatives

The Electrical Trades Union has notified Schindler Lifts Australia Pty Ltd that persons who are represented in bargaining by the ETU and any persons who are bargaining representatives for themselves but are members of the ETU will engage in the following industrial action on 7 August 2025 and each and every day thereafter continuing indefinitely:

·     24 hour ban on using battery powered tools

·     24 hour ban on using multi-meters

Employees covered by the Schindler Lifts Australia Pty Ltd (NSW) Enterprise Agreement 2022- 2025 are hereby notified that Schindler will take employer response action in response to the above industrial action.

Employees engaging in the above industrial action will be locked out from their employment without pay.

Employer response action will start on 8 August 2025.

  1. The application was filed at approximately 8:41 a.m. on Wednesday 13 August 2025. The application was allocated to my Chambers on the afternoon of Wednesday 13 August 2025. The application was the subject of a hearing before me, which commenced at 9:00 a.m. on Thursday 14 August 2025. Ms Alana Heffernan appeared for the ETU. Ms Thea Price appeared, with permission granted under section 596(2)(a), (b) & (c ) of the FW Act, for Schindler. The ETU relied on a Statement of Allen Hicks dated 13 August 2025.[2] Mr Hicks is the Branch Secretary of the NSW/ACT Branch of the ETU. Mr Hicks was not required for cross-examination, and Ms Price confirmed that Schindler did not contest the matters of fact set out in Mr Hick’s statement. Schindler did not call any witness evidence in opposing the application. However, Schindler did tender two emails from Ms Hazel Moore, and one email from Mr Hicks.[3] Ms Moore is Schindler’s Regional General Manager – NSW & ACT. The parties made oral submissions at the hearing.

  1. I am conscious that section 420(1) of the FW Act provides that as far as practicable, the Commission must determine an application for an order under section 418 of the FW Act within 2 days after the application is made. In light of that requirement, my reasons are relatively brief. I have conducted the hearing and published this decision within the 2 day period referred in section 420(1) of the FW Act and just over 24 hours of the matter being allocated to my Chambers.

  1. For the reasons explained below, I am satisfied that Schindler is currently taking industrial action as defined by section 19 of the FW Act. The industrial action is a lockout. The lockout commenced on 8 August 2025.[4] The lockout has been continuous and ongoing since 8 August 2025.[5] Over 200 employees and ETU members have been, and remain, locked out.[6] I am satisfied that that the industrial action is not, and will not, be protected industrial action. I am satisfied that the industrial action is happening, and is threatened, impending or probable. Consequently, I must make an order under section 418 of the FW Act. I have made an order that the industrial action being taken by Schindler must stop and must not occur.

Legislation

  1. Industrial action is defined at section 19 of the FW Act. Section 19 is reproduced below:

Meaning of industrial action

(1)  Industrial action means action of any of the following kinds:

(a)  the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b)  a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c)  a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d)  the lockout of employees from their employment by the employer of the employees.

(2)  However, industrial action does not include the following:

(a)  action by employees that is authorised or agreed to by the employer of the employees;

(b)  action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c)  action by an employee if:

(i)  the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii)  the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3)  An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

  1. Protected industrial action is defined at section 408 of the FW Act.[7] There are three forms of industrial action that are defined as protected industrial action. Employer response action is one of those forms of industrial action.

  1. Employer response action is defined at section 411 of the FW Act.[8] The requirements at section 411(a), (b), (c) and (d) must be satisfied for the industrial action to fall within the definition of employer response action. If each of those requirements are not satisfied, the industrial action will not be employer response action and will not be protected industrial action.

  1. At issue in the application was whether section 411(c) of the FW Act had been satisfied. Section 411(c) requires the industrial action to meet the common requirements set out in Subdivision B. A number of common requirements are set out at section 413 of the FW Act. One such common requirement is the notice requirements. Section 413(4) of the FW Act provides that the notice requirements set out in section 414 must have been met in relation to the industrial action.

  1. The notice requirements that relate to employer response action are set out at section 414(5) of the FW Act, which is reproduced below:

(5)  Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a)  give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b)  take all reasonable steps to notify the employees who will be covered by the agreement of the action.

  1. There is an additional notice requirement that relates to employer response action (and employee claim action and employee response action). That is set out at section 414(6) of the FW Act, which is reproduced below:

Notice requirements-content

(6)  A notice given under this section must specify the nature of the action and the day on which it will start.

  1. It should be evident from the above that a failure by an employer to meet the notice requirements in section 414(5) & (6) of the FW Act before the employer engages in industrial action means that such industrial action is not employer response action and not protected industrial action.

  1. Section 418 of the FW Act is reproduced below:

FWC must order that industrial action by employees or employers stop etc.

(1)  If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a)  is happening; or

(b)  is threatened, impending or probable; or

(c)  is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period ) specified in the order.

(2)  The FWC may make the order:

(a)  on its own initiative; or

(b)  on application by either of the following:

(i)  a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii)  an organisation of which a person referred to in subparagraph   (i) is a member.

(3)  In making the order, the FWC does not have to specify the particular industrial action.

(4)  If the FWC is required to make an order under subsection   (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a)  some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b)  which has not ended before the beginning of that stop period; or

(c)  beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.

  1. A Full Bench of the Commission in United Voice v Foster’s Australia Limited[9] found that “under s.418(1), once it “appears” to the Commission that industrial action is happening, or is threatened, impending or probable, or is being organised, then the Commission “must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order” (underlining added). That is, once a state of satisfaction has been reached concerning any of the jurisdictional prerequisites, the making of an order under s.418(1) does not involve the exercise of a general discretion but rather the discharge of a statutory duty.’’[10]

Relevant facts

  1. The Schindler Lifts Australia Pty Ltd (NSW) Enterprise Agreement 2022 – 2025 (the Agreement) reached its nominal expiry date on 30 June 2025.[11] The Agreement covers and applies to Schindler, a defined group of Schindler employees that are employed in New South Wales, the ETU and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU).

  1. Bargaining for a replacement enterprise agreement is ongoing.[12] I was told at the hearing that the ETU and the AMWU are only bargaining representatives for the proposed enterprise agreement (other than Schindler: see section 176(1)(a) of the FW Act). Mr Hicks and Mr Zac Hicks, who is an Organiser with the ETU, have responsibility for bargaining the proposed enterprise agreement on behalf of the ETU.[13]

  1. Since 1 August 2025, members of the ETU who are employed by Schindler and who will be covered by the proposed enterprise agreement have engaged in industrial action.[14] The industrial action has included stoppages of work and partial work bans.[15] Schindler did not challenge and accepted Mr Hicks description that the industrial action taken by ETU members has been, and is, protected industrial action.

[18] At approximately 7:27 p.m. on Thursday 7 August 2025, Ms Moore sent an email, which was entitled "Notice of Employer Response Action”.[16] A document, which was described in the email by Ms Moore as “the notice of employer response action“ was attached to the email. The attachment is the document reproduced at paragraph 2 above. Essentially, it was a notice that employees would be locked out from their employment without pay (Lockout Letter). The Lockout Letter states that the employer response action (i.e. the lockout) would start on 8 August 2025.

  1. Schindler relies upon the Lockout Letter as the written notice required by section 414(5) of the FW Act. Schindler did not rely upon any other written notice in resisting the application.

  1. The actual recipients of Ms Moore’s email with the Lockout Letter was not identified with any precision at the hearing. It would appear based upon the oral submissions made by the parties at the hearing that the Lockout Letter was sent to each employee that will be covered by the proposed enterprise agreement.

  1. Critically, Schindler did not give the Lockout Letter to Mr Hicks, Mr Zac Hicks or to the registered address of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the registered address of the Electrical, Energy and Services Division of the CEPU (ETU), or the registered address of the NSW Divisional Branch of the Electrical, Energy and Services Division of the CEPU (ETU NSW).[17] I note that the registered address of the ETU NSW is recorded at Rule 4 of the ETU NSW Rules, which can be accessed on the Commission website. The Lockout Letter was not given (either in hard copy or electronic copy) to Mr Hicks, Mr Zac Hicks, to the registered address of either the CEPU, ETU, or the ETU NSW or a publicly advertised physical address or email address associated with any of these entities.

  1. Schindler accepted that it did not give the Lockout Letter to Mr Hicks, Mr Zac Hicks or to the registered address or publicly advertised physical address of the CEPU, ETU or ETU NSW.

  1. Schindler submitted that it gave the Lockout Letter to a number of its employees that are workplace delegates of the ETU. Ms Heffernan did not challenge that submission. The identity and number of these ETU delegates was not disclosed at the hearing.

  1. Based upon the material and submissions made by the parties, I find that the Lockout Letter was given to a number of Schindler’s employees that are workplace delegates of the ETU. I find that the Lockout Notice was not given to any full-time official, officer or employee of the CEPU, ETU and / or ETU NSW, such as Mr Hicks or Mr Zac Hicks, or given (either in hard copy or electronically) to the registered address or publicly advertised office and / or address of the CEPU, ETU and / or ETU NSW. The same finding applies with respect to the AMWU, which is also a bargaining representative for the proposed enterprise agreement.

  1. Based upon the material and submissions made by the parties, I find that on and from 8 August 2025 that Schindler has locked out over 200 of its employees that are ETU members. I find that those employees have been locked out since 8 August 2025. I find that the lockout is happening at the time of the hearing and at the time of publication of this decision. It appears to me that the lockout will continue. I make that finding because the Lockout Letter describes a date when the lockout started, the lockout remains ongoing and there does not appear to be future date on the material before me when the lockout will stop. On that basis, I find that the lockout is threatened, impending or probable.

Contentions of the parties

  1. The issue to be determined is confined to whether before Schindler locked out the employees it complied with the notice requirements of section 414(5)(a) of the FW Act.

[27] Ms Heffernan for the ETU contended that Schindler did not comply with the notice requirements in section 414(5)(a). Ms Heffernan submitted that section 414(5)(a) requires the written notice to be given to each bargaining representative. Ms Heffernan submitted that the term bargaining representative is defined at section 176(1)(b) of the FW Act to mean in these circumstances the employee organisation, being the ETU. Ms Heffernan submitted that the Lockout Letter was not given to the ETU and that the giving of the Lockout Letter to Schindler employees that are workplace delegates of the ETU does not meet the notice requirements of section 414(5)(a). In making that submission, Ms Heffernan pointed to the distinction between section 414(5)(a), which concerns the giving of the written notice to each bargaining representative, and section 414(5)(b), which concerns taking all reasonable steps to notify the employees. Ms Heffernan relied upon that distinction in support of the argument that the giving of the Lockout Letter to employees (that are also workplace delegates) does not amount to compliance with section 414(45)(a). Ms Heffernan submitted that I should find Schindler’s non-compliance with the notice requirements means that the lockout is not protected industrial action, and that it is happening, is threatened, impending, or probable. Ms Heffernan submitted that in the circumstances that I must make an order under section 418 of the FW Act. The stop period specified in the draft order filed by the ETU with the application was for a period of 30 days from the date of the order.

  1. Ms Price for Schindler resisted the order. In summary, Ms Price submitted that the giving of the Lockout Letter to the Schindler employees that are workplace delegates of the ETU meant that Schindler complied with the notice requirements of section 414(5)(a) of the FW Act. In making that submission, Ms Price said that the delegates were participating in bargaining on behalf of the ETU and that there was a long history of the delegates engaging in bargaining with Schindler on behalf of the ETU. In making her submissions, Ms Price did not seem to engage with the definition of a bargaining representative in the FW Act. Rather, reliance on section 350C of the FW Act, which concerns workplace delegates and their rights. Ms Price submitted that if an order was to be made, that the stop period should be one day.

  1. At the hearing I asked both parties whether there were aware of any authority that dealt with the issue of whether giving the written notice required by section 414(5)(a) to workplace delegates of an employee organisation amounts to compliance with that requirement. Neither party referred me to any such authority.

Consideration

  1. I accept the submissions made by Ms Heffernan of the ETU. I do not accept that by giving the Lockout Letter to its employees that are workplace delegates of the ETU that Schindler has complied with the notice requirements in section 414(5)(a). That requirement concerns ‘each bargaining representative’. The FW Act defines a bargaining representative at sections 176 and 177 of the FW Act.[18] The proposed enterprise agreement is not a greenfields agreement. Therefore, section 176 is relevant and section 177 is not relevant. It is clear from section 176(1)(b) that it is the employee organisation that is the bargaining representative. An employee organisation is defined in the FW Act.[19] The ETU is an employee organisation.[20] It follows that the bargaining representative is the ETU. The workplace delegates of the ETU are not the ETU. The workplace delegates are plainly members of and act as representatives of the ETU, including during this bargaining round.

  1. The question of whether the written notice required to be given under section 414(5)(a) has been given to a bargaining representative that is an employee organisation will turn on its own facts. In my view, that notice requirement in those circumstances requires the giving of the written notice to the employee organisation. An employee organisation is required to have rules. An employee organisation is governed by and must act in accordance with its rules. In my view, the answer to whether an employee organisation has been given a written notice as required by section 414(5) is to be answered by reference to the rules of the employee organisation. The rules may make provision for a registered office / address. If that is the case, the giving of the written notice to that registered office / address complies with the requirement of section 414(5)(a). Further and / or in the alternate, the rules will invariably entrust one or more office holders with responsibility for the day to day management and operation of the employee organisation (or a division or branch thereof). In making this observation, I note section 141(1)(b)(i) of the Fair Work (Registered Organisations) Act 2009, which requires the rules of an organisation to provide for the powers and duties of office holders. If one or more office holders are given such responsibilities under the rules, the giving of the written notice to such an official complies with the requirement of section 414(5)(a).

  1. The Lockout Letter was not given to the registered office / address of the ETU. It was not given to a senior official given responsibility under rule for the day to day management and operation of the ETU. Without checking, I presume that Mr Hicks is likely entrusted with such responsibility. The giving of the written notice, via email, to a person such as Mr Hicks would not have been difficult. Ms Price said that it was not intentional to omit Mr Hick or Mr Zac Hicks. However, it is surprising that the most senior officer of one or the two bargaining representatives would not be notified before over 200 employees were locked out.

  1. By giving the Lockout Letter to its employees that are workplace delegates of the ETU, Schindler has done no more than meet the requirement under section 414(5)(b). As submitted by Ms Heffernan, section 414(5)(b) is clearly distinguishable from section 414(5)(a). Schindler did not meet the requirement of section 414(5)(a) before it engaged in a lockout, which, I find, is industrial action within the meaning of section 19 of the FW Act.

  1. The consequence is that it appears that the industrial action that Schindler has taken continuously since 8 August 2025 is not, and would not be, protected industrial action. Based on the material before me, I find that such industrial action is happening, is threatened, impending or probable. As such, I must make an order under section 418. The order will be that the industrial action stop and not occur.

  1. The stop period specified in the order must be directed to the purpose of ensuring that the lockout engaged in by Schindler, which I have found not to be protected industrial action, must stop and not occur.[21] The lockout has been ongoing for a period of seven days. I am satisfied that a stop period of 14 days from the date of the order is sufficient to ensure that the lockout must stop and not occur.

Conclusion

  1. I am satisfied that Schindler is currently taking industrial action as defined by section 19 of the FW Act. The industrial action is a lockout. I am satisfied that that the industrial action is not, and will not, be protected industrial action. That is because Schindler did not comply with the notice requirements in section 414(5)(a). I am satisfied that the industrial action is happening, and is threatened, impending or probable. I must make an order under section 418 of the FW Act. I have made an order that the industrial action being taken by Schindler must stop and must not occur. The order, which has a stop period of 14 days, will be published with this decision.

COMMISSIONER

Appearances:

A, Heffernan, For the CEPU

T. Price, For the Respondent

Hearing details:

Sydney by Video using Microsoft Teams 
2025 
14 June


[1] AH4 to Statement of Allen Hicks dated 13 August 2025, Exhibit A1.

[2] Exhibit A1.

[3] Exhibits R1, R2 and R3.

[4] Paragraph 10 of Exhibit A1.

[5] Paragraph 10 of Exhibit A1.

[6] Exhibit R3.

[7] Section 12 of the FW Act.

[8] Section 12 of the FW Act.

[9] [2014] FWCFB 4104.

[10] At [35].

[11] Paragraph 2 of Exhibit A1.

[12] Paragraph 2 of Exhibit A1.

[13] Paragraph 2 of Exhibit A1.

[14] Paragraph 4 of Exhibit A1.

[15] Paragraph 4 of Exhibit A1.

[16] Exhibit R2.

[17] Paragraph 9 of Exhibit A1.

[18] Section 12 of the FW Act.

[19] Section 12.

[20] As per above, the ETU is used as a shorthand reference in this decision. It is understood that the CEPU is the employee organisation.

[21] United Voice v Foster’s Australia Limited [2014] FWCFB 4104 at [38] - [39].

Printed by authority of the Commonwealth Government Printer

<PR790705>

Actions
Download as PDF Download as Word Document
Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

0

United Voice v Foster's Australia Limited [2014] FWCFB 4104