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

[2024] FWC 1983

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

(B2024/946)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 26 JULY 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 or Employer).

On 26 July 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 Stephen Bravo, 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 9 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

The CEPU has advised that they will provide the following safety undertaking in the issue of any notices of industrial action authorised by the ballot:

“The CEPU undertakes to ensure that in an emergency situation where there is a risk to personal health and safety and where no other workers are available, CEPU members will be available to perform work. CEPU members will not engage in industrial action that would endanger the life, personal safety, health or welfare of the population or part thereof.”

The CEPU has also committed to further discussions with Schindler around safety issues and processes in the event that its members decide to engage in protected industrial action.

An Order has been separately issued in PR777548.

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 making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and Schindler Lifts Australia Pty Ltd, with the matter being heard by the Fair Work Commission. The CEPU applied for a protected action ballot order under section 437 of the Fair Work Act 2009, seeking to conduct a ballot among certain employees of Schindler Lifts Australia Pty Ltd. The Commission was informed that the employer did not object to the application, allowing the matter to be determined on the submitted papers without a hearing.

The key legal issues before the Commission were whether the CEPU had genuinely attempted to reach an agreement with the employer and whether the requirements of section 443(1) of the Fair Work Act had been met, including the notification period for the proposed agreement. The CEPU's declaration by Stephen Bravo, an Organiser, outlined the steps taken in bargaining with the employer and affirmed the union's genuine efforts to reach an agreement. The Commission was also required to determine the closing date for voting, ensuring it adhered to the statutory requirements under section 443(3)(c) of the Act.

The Deputy President concluded that the CEPU had met all the necessary requirements, including the notification period, and granted the protected action ballot order. The Commission determined that voting would close on 9 August 2024, effectively setting the ballot period. The CEPU further committed to ensuring that in emergency situations, its members would be available to perform work to protect personal health and safety, and would not engage in industrial action that could endanger the public. The CEPU also pledged to continue discussions with Schindler regarding safety issues and processes should its members decide to proceed with protected industrial action.

An Order was separately issued, and the matter was assigned to another Member of the Commission for a compulsory conciliation conference under section 448A of the Fair Work Act. The conference aimed to facilitate meaningful negotiations between the bargaining representatives, with potential directions to ensure both parties were prepared to engage effectively in the discussions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established