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 KONE Elevators Pty Ltd - Non-AEC ballot agent electronic voting

[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 Kone Elevators Pty Ltd (KONE or Employer). The Commission understands that the parties are seeking to negotiate an enterprise agreement to replace the KONE NEB and TRB Employees Western Region Enterprise Agreement 2022.

• [2] I observe that the CEPU has made another application[1] with KONE involving a different proposed enterprise agreement.

[3] On 3 March 2026, the Commission was advised that the Employer, in effect, did not object to the Application if amended in certain respects. The parties subsequently reached a consent position with an amended 'emergency events provision' and an extended notice period for the taking of any industrial action.

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

[5] On the basis of the material before me, including the declaration of Robyn de Graaf, 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 KONE, 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.

[6] 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 is authorised to conduct the ballot.

• [7] Under the Act, the Commission must determine the ballot period. In exercising the discretion under s.443(3A), I have had regard to the requested period sought by the CEPU (2 days after commencement of voting) and the other circumstances of the matter, including the requirements in relation to the orders to attend, and have the Commission conduct, conferences pursuant to s.448A of the Act. I observe that no particular grounds were advanced for the proposed period, however the Commission is obliged to make an order that enables the ballot to be conducted as soon as practicable. I have had regard to these matters[2] and determined that for the purposes of s.443(3)(c) of the Act, the date by which voting is to close is 16 March 2026.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

[8] I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. By agreement, the minimum extended notice period of five (5) working days applies to the items listed within Clause 5 of the Order. Given the terms of the Act, this notice period has been expressed as a term of the order.

[9] An Order has been separately issued in PR797336.

[10] This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. 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] Consistent with CEPU v Nilsen (NSW) Pty Ltd [2023] FWCFB 134, [66].

[3] This is, in effect, 8 working days from the making of the Order.

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