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

[2025] FWC 1614

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

(B2025/920)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 JUNE 2025

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

This is an application by 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 in relation to certain employees of Schindler Lifts Australia Pty Ltd (Schindler or Employer).

On 11 June 2025, the Commission was advised that the Employer, in effect, did not object to the Application if amended to reflect discussions between the parties concerning the ‘emergency events’ arrangements in clause 5 of the draft order.

In the circumstances, I have decided to amend the Application and determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Robyn de Graaf, Union 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 30 June 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended minimum period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of five (5) working days applies to the items listed within Clause 5 of the Order.

An Order has been separately issued in PR788116.

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] This is, in effect, 10 working days from the anticipated commencement of the ballot and was the period sought in the application as amended.

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 (CEPU) applied for a protected action ballot order against Schindler Lifts Australia Pty Ltd. The CEPU sought to conduct a ballot of its members employed by Schindler Lifts, aiming to authorise protected industrial action due to ongoing disputes regarding the terms of a proposed enterprise agreement. Schindler did not oppose the application, provided the order was amended to reflect their discussions concerning 'emergency events' arrangements.

The primary legal issue before the Deputy President was whether the requirements of section 443 of the Fair Work Act 2009 had been satisfied, which sets out the conditions for a protected action ballot. This included verifying that the union had genuinely attempted to reach an agreement with the employer and determining if there were exceptional circumstances justifying an extended notice period for the industrial action. The Deputy President also needed to decide on the appropriate date for closing the ballot to ensure compliance with the Act's provisions.

After reviewing the submissions and evidence, the Deputy President concluded that the CEPU had met all necessary criteria for a ballot under section 443. The union's declaration, along with the steps taken in bargaining, confirmed their genuine efforts to reach an agreement. The Deputy President also found that exceptional circumstances existed, warranting an extension of the minimum notice period for the industrial action. Consequently, the application was amended to reflect the agreed terms, and the ballot was scheduled to close on 30 June 2025. Additionally, a compulsory conciliation conference was mandated to facilitate further negotiations between the parties.

The Fair Work Commission issued an order approving the protected action ballot and setting the closing date for the ballot as 30 June 2025. The order also extended the notice period for the industrial action to five working days, reflecting the exceptional circumstances identified. Another order was issued separately, assigning the matter to another Member of the Commission to conduct the compulsory conciliation conference. This order required the attendance of all bargaining representatives and likely included directions to ensure the parties were prepared to engage in meaningful negotiations.

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