[2025] FWC 2281

Fair Work Act 2009

s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

Proposed protected action ballot of employees of Otis Elevator Company Pty Ltd

• [1] This is an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU 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 Otis Elevator Company Pty Ltd (Otis or Employer).

• [2] I note that the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.[1]

• [3] On 5 August 2025 the Commission was advised that the parties had reached a consent position in relation to the removal of one of the proposed ballot questions and the provision of an (emergency call-out) undertaking by the Applicant.

• [4] In the circumstances, I have decided to amend the application to reflect the consent position reached and otherwise determined the matter on the papers without holding a hearing.

• [5] I observe that the parties agreed for the AMWU to give the following undertaking as part of the subsequent notification of protected industrial action to the Employer:

In any and all circumstances, employees will remain available for entrapment release and emergency call outs for all customers.

• [6] On the basis of the material before me, including the declaration of Andrew Bonello, Industrial Officer, setting out the steps taken by the AMWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Otis, 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.

• [7] The ballot is to be conducted by Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

• [8] I observe that the application provided in this matter contained some limited additional observations about the AMWU's preference in relation to the updating and finalisation of the list of voters. These were not in a form suitable for inclusion in the Order and contradicted some of the other proposed provisions. In that light, I have issued the Order using the Commission's standard approach, noting that this is also consistent with the role to be played by the Act and associated regulations on the conduct of the ballot. I also observe that the Ballot Agent may have regard to the proposals set out in the application to the extent that they are consistent with the Order and the proper conduct of a ballot of this kind.

• [9] 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 19 August 2025.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [10] An Order has been separately issued in PR790395.

• [11] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other 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.

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

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