Fair Work Act 2009

s.437 - Protected action

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

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

• [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).

• [2] The Commission was advised that the Employer, in effect, did not object to the Application, but sought amendments to the draft order sought by the Applicant. The proposed protected action ballot order sought a notice period of three working days, where the Employer sought an extended notice period of five working days. The Employer also sought an extensive safety clause be inserted.

• [3] The Applicant did not consent to the amendments requested by the Employer. The matter was heard by consent on 24 June 2025. The parties provided written submissions and witness statements and their witnesses were cross-examined at the hearing.

• [4] With consent of the Commission the matter proceeded to conference. The parties have reached a consent position to safety arrangements and have agreed to an undertaking which is inserted into the Order by consent. It was agreed that this would alert employees and will be included in the notification of industrial action:

"The CEPU will include the following safety undertaking in each of its protected industrial action notices "The CEPU undertakes to ensure that in an emergency situation (as defined below) where there is a risk to personal health or 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. For the purposes of this Undertaking, the following would be considered an emergency situation:

• Elevators and escalators within healthcare facilities

• Elevators and escalators within aged care facilities

• Elevators and escalators that are the sole means of vertical transportation within residential buildings, or where persons reside or need access who are not reasonably able to use alternate access (such as disabled or aged persons). Where more than one unit exists on these sites, only one shall be returned to service.

In the event of a trapped passenger after freeing the passenger, the lift shall not be returned into normal operation except in the following circumstances:

• Elevators and escalators within healthcare facilities

• Elevators and escalators within aged care facilities

• Elevators and escalators that are the sole means of vertical transportation within residential buildings, or where persons reside or need access who are not reasonably able to use alternate access (such as disabled or aged persons). Where more than one unit exists on these sites, only one shall be returned to service."

• [5] Following this consent position, the Employer withdrew its request under s.443(5) for an extended minimum period of written notice when taking industrial action. The parties confirmed that the Applicant will separately provide a memorandum of understanding to the Employer, which provides for the communication of work in emergency situations. Whilst this document is not recorded in the decision, it was shared with the Commission.

• [6] On the basis of the material before me, including the declaration of Stephen Roy Leonard 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 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. Any protected action notified under the order will be for a period of three working days in compliance with s.414(2).

• [7] 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.

• [8] 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 7 July 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

• [9] An Order has been separately issued in PR788536.

• [10] I will proceed to conduct the s.448A compulsory conciliation conference on 2 July 2025 at 2.00pm and will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference.

D Murray of Australian Industry Group for the Employer.

[1] 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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