Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Schindler Lifts Australia Pty Ltd
[2025] FWC 2004
•11 JULY 2025
| [2025] FWC 2004 |
| 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
(B2025/1116)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 11 JULY 2025 |
Proposed protected action ballot of employees of Schindler Lifts Australia Pty Ltd
This is an application by the South Australian branch of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Schindler Lifts Australia Pty Ltd (Schindler or Employer).
I observe that there were some inconsistencies in the original application and draft order regarding the legal entity name of the Employer, the employees to be balloted, the ballot preamble, instructions to the Protected Action Ballot Agent and whether the questions were to be balloted individually or collectively. These issues have been rectified through an amended application and draft orders.
On 11 July, the Commission was advised that the Employer objected to one aspect of the Application, but did not otherwise seek to contest the proposed order being made. Schindler contended there is no “provision for providing support to trapped passengers during any period of notified industrial action, given the essential nature of this emergency service.” Schindler proposed a clause to be inserted at the end of clause 5 of the proposed Draft Order (the ballot questions) to make arrangements for situations where passengers became trapped in lifts.
The CEPU declined to include the proposed clause and advised it “does not object in principle to the objective behind the employer’s comments and we are prepared to agree with the employer to an arrangement for managing trapped passengers.” The CEPU acknowledged that while it may have adopted the practice of including safety undertakings on previous occasions, it had formed a view it is not appropriate or desirable to do so. The CEPU contended that the there is no requirement, or relevant basis, for the Commission to consider the issue in the context of making a PABO. The CEPU advised that it would consult with their members about “the proposed wording on the basis that it might be an arrangement that will apply to the taking of any industrial action. If the matter is not resolved by the time of the (s.448A) compulsory conference, we suggest that would be a suitable forum to discuss the matter further.”
As set out earlier, the Application was not otherwise opposed, and Schindler did not seek an extended period of notice of industrial action.
Despite parties being afforded the opportunity to be further heard, neither party sought to do so. In the circumstances, I have decided to grant leave for the application to be amended and determine the matter on the papers without holding a hearing.
I observe that the same contested issues arose in a recently determined PABO application involving the same parties.[1] This decision should be read in conjunction with the decision[2] issued in that matter.
Section 437 of the Act provides as follows:
“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 the application
(6) The application must be accompanied by any documents and other information prescribed by the regulations.”
Section 443 of the 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.”
I observe for completeness that there are other statutory requirements for a PABO to be issued that are not in issue in this matter and do not arise from the contested aspect. Further, compliance with the matters raised in the provisions above is also not in dispute.
In relation to the asserted public safety concerns, as with the earlier matter I would accept that depending upon the precise context and the form, duration and nature of industrial action, such concerns may well arise in this enterprise, given the nature of its operations. Indeed, it is not uncommon in my experience for some pragmatic arrangements to be agreed between the parties in this industry regarding potential lift entrapments that are included in the ballot questions to inform the nature of the proposed industrial action.[3] However, this does not mean that the Commission can require such arrangements as part of making an order of this kind. This arises in part from the scheme of the Act and the role played by a PABO. The function of the PABO is established by Part 3-3 of the Act. Essentially, a PABO is a necessary step for a bargaining representative to ultimately seek the capacity to take protected industrial action in support of bargaining for relevant enterprise agreements.
The taking of protected industrial action by both employees and employers, that is designed to advance claims and to persuade the other party to change their position, is part of that scheme. This must be undertaken in the context of the relevant party genuinely trying to reach an enterprise agreement.
Whether any proposed industrial action becomes protected will ultimately depend on compliance with the statutory parameters including whether a relevant question is supported by the ballot,[4] whether the action is notified in accordance with the requirements of the Act,[5] and whether it is industrial action within the meaning of the Act.[6] Further, an employer who is subject to threatened, impending or probable industrial action may seek to have such action suspended or terminated on various grounds including whether it endangers the life, the personal health or safety, or the welfare, of the population, or of part of it, or causes significant damage to the Australian economy, or an important part of it,[7] or causes significant economic harm.[8] Industrial action that is not protected industrial action may be prevented.[9]
Further, there is nothing in the terms of s.443 itself that would enable the Commission to require the insertion of some arrangements of the kind sought where not otherwise agreed as part of ballot questions. In this regard, I observe that the Commission does not, in determining a PABO application, approve or disapprove the particular proposed forms of industrial action beyond consideration of the ballot questions required by s.443(3)(d) of the Act.
I observe that the application and draft order provided in this matter contained certain observations about the CEPU’s preference in relation to ballot closure and related arrangements. These were not in a form suitable for inclusion in the Order and contradicted some of the other proposed provisions. In that light, I have issued the Order using the Commission’s standard approach and not issued any additional directions, noting that this is also consistent with role to be played by the Act and associated regulations in the conduct of the ballot. I further observe that the Ballot Agent may have regard to the proposals set out in the application to the extent that they are consistent with the Order and the proper conduct of a ballot of this kind.
On the basis of the material before me, including the declaration of Alex Capper, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Schindler, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 1 August 2025.[10] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR789169.
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 for 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] B2025/1107.
[2] Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Schindler Lifts Australia Pty Ltd[2025] FWC 1970 issued on 10 July 2025.
[3] See for example Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Schindler Lifts Australia Pty Ltd[2025] FWC 1524 and PR787896.
[4] Sections 437, 408 and 409 of the Act.
[5] Section 414 of the Act.
[6] Section 19 of the Act.
[7] Section 424 of the Act.
[8] Section 423 of the Act.
[9] Section 418 of the Act.
[10] This is, in effect, 14 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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