[2025] FWC 2270

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

Proposed protected action ballot of employees of Otis Elevator Company 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 Otis Elevator Company Pty Ltd (Otis Elevator or Employer).

• [2] I note that the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

• [3] On 4 August 2025, the Commission was advised that the Employer, in effect, did not object to the Application if amended by the CEPU to remove one of the proposed ballot questions, and if an appropriate (emergency call-out) undertaking was provided by the Applicant. The CEPU has agreed to remove the disputed ballot question.

• [4] In the circumstances, I have granted leave to amend the application and decided to determine the matter on the papers without holding a hearing.

• [5] I observe that the parties have now also agreed for the CEPU 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 Gabriel Brinduse, 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 Otis 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.

• [7] The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting 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 CEPU'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 PR790359.

• [11] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference in conjunction with the related matter, should an order also be issued as a result of that application. 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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