Schindler Lifts Australia Pty Ltd

[2013] FWC 4699

[2013] FWC 4699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Schindler Lifts Australia Pty Ltd
(C2013/1053)

SCHINDLER LIFTS AUSTRALIA PTY LTD (WESTERN AUSTRALIA) ENTERPRISE AGREEMENT 2010-2013

Building, metal and civil construction industries
DEPUTY PRESIDENT MCCARTHY	PERTH, 19 JULY 2013

Application for an order regarding unprotected industrial action- did Protected Action Ballot approve concurrent industrial action by different groups of employees.

Background

[1] Schindler Lifts Australia Pty Ltd (Schindler) lodged an application for an order to stop unprotected industrial action (the application) at 5:34 PM on Thursday July 2013. The application was allocated to me to deal with on Friday 12 July 2013. I listed and heard the matter at 2 PM that day. I dismissed the application at the conclusion of that hearing as it appeared to me that the industrial action being organised was protected industrial action. These are my reasons for that decision.

[2] Schindler is involved in the industry of installation, modernisation, maintenance and service of passenger, freight and special elevators, escalators and moving walks. Employees of Schindler in Western Australia are covered by the Schindler Lifts Australia Proprietary Limited (Western Australia) Enterprise Agreement 2010 - 2013 (the 2010 agreement). The nominal expiry date of the 2010 agreement was 30 June 2013. The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, (the CEPU) is a bargaining representative for the employees and has been negotiating with Schindler for a replacement enterprise agreement.

[3] There are two main groups of employees employed by Schindler, those in the Installation Department and those in the Service Department. There are approximately 29 employees engaged in the Service Department and 39 employees engaged in the Installation Department. The Installation Department employees carry out work on construction sites across Perth and at other locations in Western Australia. They install equipment into new buildings as they are constructed and also modernise existing equipment in existing buildings. Service Department employees are engaged in the service and maintenance of passenger and freight elevators, escalators and the like in existing buildings located in and around Perth and regional areas in Western Australia. Part of the Service Department role involves attending to breakdowns, sometimes involving passengers trapped. Obviously breakdowns can happen at any time.

[4] Outside normal hours, Service Department employees are rostered onto an After Hours Roster for the purposes of attending to Call Outs after 6 PM. They are effectively on standby until 6 AM the next morning and their role is specifically to attend to trapped passengers and breakdowns of lifts and escalators.

The Protected Action Ballot and the Notice of Industrial Action

[6] On 11 June 2013, I issued an Order [B2013/943] (the PAB Order) granting approval for a protected action ballot to be conducted.

[7] The questions posed in the Ballot were:

“Do you, for the purposes of advancing claims in the negotiation of an enterprise agreement with Schindler Lifts Australia Pty Ltd, authorise industrial action in the form of:

1. Twenty-four (24) hour stoppages of work which may be organised or engaged in for consecutive periods?

2. Bans on the working of overtime?

3. Seven (7) day stoppages of work which may be organised or engaged in for consecutive periods?

4. Stoppages of work of eight (8) hours in duration which may be organised or engaged in for consecutive periods?

5. Two (2) hour duration stop work meetings which may be organised or engaged in for consecutive periods?

6. One (1) hour stop work meetings which may be organised or engaged in for consecutive periods?

7. Stoppages of work four (4) hours in duration which may be organised or engaged in for consecutive periods?

8. Bans on the performance of administrative work and record keeping?

[9] A ballot was conducted by the Australian Electoral Commission who declared the result on or around 8 July 2013. The result of the ballot was that a majority of the employees on the roll of voters voted in favour for all of the questions in the ballot.

[10] On or around 9 July 2013, the Union served Schindler with a Notice of Protected Industrial Action (the Notice) indicating that Schindler’s employees for whom the CEPU is the bargaining representative, will be engaging in industrial action for the purpose of supporting or advancing claims in relation to the proposed enterprise agreement.

[11] The Notice stated that;

“The nature of the industrial action and the day on which it will start is as follows:

A seven (7) day stoppage of work commencing 6:00am Saturday 13 July 2013 by employees in the construction and modifications department.

A twenty four (24) hours stoppage of work commencing 6:00 am Monday 15 July by employees in the service and repairs department.

A ban on the performance of overtime, including a ban on the performance of call outs commencing 6 am Saturday 13 July 2013 continuing indefinitely by the employees in the service and repairs department.”

[16] The contention of Schindler is that the industrial action notified is not industrial action approved of by the Ballot. Schindler asserts that the taking of concurrent forms of industrial action is not authorised by the Ballot and the taking of different forms of industrial action by different categories of employees is also not authorised by the Ballot.

The Legislation

[18] The Fair Work Act 2009 (The FW Act) provides in s.418 that

“(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.”

[24] Here it is not in contention that industrial action is being organised and also is threatened impending and probable. What is asserted is that the industrial action will not be protected industrial action.

[26] Industrial action is protected industrial action if it is employee claim action for a proposed enterprise agreement.  1 It is not disputed here that the industrial action is for a proposed enterprise agreement. Employee claim action is industrial action that is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement. 2 Here it is not disputed that the proposed industrial action is for that purpose. Nor is it disputed that the action is being organised against Schindler by a bargaining representative of employees who will be covered by the agreement. 3

[28] The industrial action that is being organised must also meet what are described as “common requirements” in The FW Act  4, here industrial action being organised does not relate to a greenfield’s or multi-enterprise agreement, 5 nor is it claimed that the CEPU is not genuinely trying to reach an agreement. 6 The 2010 Agreement covers the employees and has passed its nominal expiry date. 7 A written notice about the industrial action of at least three working days has been given, 8 which was clearly after the results of the protected action ballot 9 and the notice specifies the nature of the action and the day it will start. 10 None of these issues regarding the common requirements are disputed.

[29] The only issue that is disputed here is whether protected action ballot authorised the three types of industrial action notified can be taken concurrently.

Schindler’s Argument

[31] Evidence was given by Elizabeth Clowes Human Resources Director for Schindler. That evidence confirmed the sequence of events leading to the notice of industrial action and the contention by Schindler that the industrial action proposed would not be protected action.

[32] Mr Bennett who represented Schindler presented a number of decisions which he claimed supported the contention that the industrial action notified would not be protected. He argued was that the phrase often used in Protected Action Ballot Orders in a fairly standard preface to the questions posed was not included in the PAB Order I issued. Usually the phrase included in the preface is that the various types of industrial action can be “separate, concurrent, and consecutive”. Mr Bennet’s argument was that by not including that phrase then the various separate types of industrial action cannot be actions that can be taken concurrently.

[33] Mr Bennett referred to John Holland Pty Ltd v AMWU & AWU (John Holland)  11, a decision of a Full Bench of Fair Work Australia. There the words “separately, concurrently and/or consecutively” were included in the preamble to the questions posed to employees in Protected Action Ballot Orders that had been issued.

[34] Here Schindler seems to be arguing that only by inclusion of the phrase “separately, concurrently and consecutively” would employees be able to be properly informed about the questions posed to them and in particular whether different types of industrial action could be taken concurrently. That is a different context to the circumstances and conclusions that were reached in John Holland. What was dealt with in John Holland was whether the phrase “separately concurrently and/or consecutively” deprived the questions posed of meaning. What the Full Bench in the John Holland decision found was;

“Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.”

[35] There was no finding or inference in John Holland that the phrase “separately concurrently and/or consecutively” should be included to give the following questions meaning rather it was found that by its inclusion it not deprive the questions of meaning.

[39] I therefore do not consider that either John Holland nor any of the other decisions referred to support the proposition that the absence of the expression “separately, concurrently or consecutively” imply that the types of industrial action that were endorsed in the PAB Order preclude different types of action being taken at different times or at the same time. The absence of the phrase in the PAB Order neither detracts from nor adds to the meaning of the questions posed and the capacity to take different forms of industrial action at different times or indeed at the same time.

[41] In my view the questions in the PAB Order were posed in a way that employees could form an informed view about what they were being asked to vote upon including the potential that the potential industrial action they were being asked to decide about could be taken by different groups of employees at different times or at the same time. It is for these reasons that it did not appear to me that the industrial action being organised was not protected industrial action.

DEPUTY PRESIDENT

 1 Fair Work Act (2009) s. 408

 2   s. 409(1)(a)

 3   s. 409(1)(b)

 4   s. 409(1)(c)

 5   s.413(2)

 6   s.413(2)

 7   s.413(6)

 8   s.414(2)

 9   s.414(3)

 10   s.414(6)

 11   [2010] FWAFB 526

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