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

[2024] FWC 2887

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

(B2024/1358)

DEPUTY PRESIDENT HAMPTON

MELBOURNE, 18 OCTOBER 2024

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 Lifts or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) has made a separate application for a protected action ballot order in relation to the same proposed agreement.[1]

On 16 October 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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

On the basis of the material before me, including the declaration of Chelsea Hill, Legal and Industrial Admin Facilitator, 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 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 1 November 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780344.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with the related matter. 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] B2024/1359.

[2] This is, in effect, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has applied to the Fair Work Commission for an order under section 437 of the Fair Work Act 2009 for a protected action ballot to be held for certain employees of Schindler Lifts Australia Pty Ltd. The application is in relation to a proposed agreement, and the CEPU is seeking to facilitate industrial action if an agreement cannot be reached with the employer. Schindler Lifts has indicated it does not object to the application, leading to the Commission deciding to determine the matter on the available documentation without the need for a hearing.

The primary legal issue before the Commission was whether the conditions under section 443 of the Act were satisfied for the issuance of a protected action ballot order. The CEPU needed to demonstrate that it had genuinely attempted to reach an agreement with Schindler Lifts and that a notification period existed for the proposed agreement. Additionally, the court had to confirm that the ballot agent, Vero Engagement & Voting Solutions Pty Ltd, was appropriately approved and authorised to conduct the ballot. The evidence provided by Chelsea Hill, Legal and Industrial Admin Facilitator, was central to establishing these requirements.

The Deputy President of the Commission found that the CEPU had met all the necessary criteria. The evidence demonstrated that the union had genuinely attempted to negotiate with Schindler Lifts and that there was a notification period for the proposed agreement. The use of Vero Voting as the ballot agent was also deemed appropriate as it was approved under section 468A of the Act. Consequently, the Deputy President issued an order under section 437 of the Act, allowing the protected action ballot to proceed. The closing date for voting was set as 1 November 2024, which was also the effective ballot period under section 448A(2) of the Act. This decision also established the framework for the subsequent compulsory conciliation conference, which will be conducted by another member of the Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established