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

[2023] FWC 1048

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

TK Elevator Australia Pty Ltd

(B2023/402)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 MAY 2023

Proposed protected action ballot of employees of TK Elevator Australia Pty Ltd

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (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 (Respondent).

On 3 May 2023, my Associate was advised that the Respondent 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 Mr Paul Scudds of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR761599.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) for a protected action ballot order in relation to certain employees of TK Elevator Australia Pty Ltd (the Employer). The Union sought to conduct a ballot of its members, who were employees of the Employer, to determine whether they would take protected industrial action. The application was made under section 437 of the Fair Work Act 2009 (the Act). The Employer did not object to the application, and the Deputy President determined the matter on the papers without holding a hearing.

The key legal issue before the court was whether the Union had fulfilled the requirements of section 443(1) of the Act, which governs the notification period for a proposed agreement and the conditions under which a ballot may be conducted. The Union had to demonstrate that it had been genuinely trying to reach agreement with the Employer and that the necessary notification period had elapsed. The court examined the declaration of Mr Paul Scudds of the Union, which outlined the steps taken in bargaining with the Employer and the Union's efforts to reach an agreement. The Union's declaration was considered sufficient evidence to meet the requirements of section 443(1) of the Act.

Based on the evidence presented, the Deputy President was satisfied that the Union had fulfilled the requirements of the Act. The notification period for the proposed agreement had passed, and the Union had been genuinely trying to reach an agreement with the Employer. Consequently, the Deputy President determined that the Union was entitled to conduct a ballot of its members for protected industrial action. An order was issued in PR761599, granting the Union's application for a protected action ballot order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established