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

[2025] FWC 2973

[2025] FWC 2973

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

TK Elevator Australia Pty Ltd

(B2025/1549)

DEPUTY PRESIDENT WRIGHT SYDNEY, 7 OCTOBER 2025

Proposed protected action ballot of employees of TK Elevator Australia Pty Ltd – Non-AEC ballot agent electronic voting

1. 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 TK Elevator Australia Pty Ltd (TK Elevator or Employer). 

1. On 6 October 2025, the Respondent advised that it did not object to the application subject to the inclusion of a more extensive emergency events provision in the order than that proposed by the CEPU in addition to confirmation of there being an extended notice period of five (5) working days in relation to the proposed forms of industrial action. The CEPU, in effect, accepted that there were relevant exceptional circumstances and agreed to the amendments.

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

1. 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 TK Elevator, 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. 

1. 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. 

1. Section 443(3)(c) of the Act requires the Commission to specify a date in the protected action ballot order by which voting in the protected action ballot closes. For the purpose of this provision, s.443(3A) requires the Commission to specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable. The application proposed that voting would close 2 days after voting in the ballot commenced. The Commission invited the CEPU to provide submissions in support of the proposed ballot period and it advised that it did not wish to advance any further considerations.

1. Matters relevant to the exercise of the discretion under s.443(3A) may include:

·     the size of the voting group,[1]

·     the capacity of the ballot agent and the capacity of the employer and bargaining representatives to provide the ballot agent with the details of employees to be balloted the views of the employer,[2]

·     the location of the group of employees, their rosters or work patterns, the nature of the work they are performing, their access to the internet or telephone services and the method by which the ballot will be conducted.[3]

·     the requirements in relation to conducting conferences pursuant to s.448A.[4]

1. To the extent that these matters are addressed in material before the Commission, I have taken all of these matters into consideration and determined that for the purposes of s.443(3)(c) that the date by which voting is to close is 21 October 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act. 

1. I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended 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 minimum extended notice period of five (5) working days applies to the items listed within Clause 5 of the Order.

1. An Order has been separately issued in PR792395.

1. 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] CEPU v Nilsen (NSW) Pty Ltd[2023] FWCFB 134, [55].

[2] Ibid

[3] Ibid, [65]

[4] Ibid, [66]

Printed by authority of the Commonwealth Government Printer

<PR792396>