1
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)
v
Otis Elevator Company Pty Limited T/A Otis Elevator Company
(B2023/534)
DEPUTY PRESIDENT HAMPTON ADELAIDE, 8 JUNE 2023
Proposed protected action ballot of employees of Otis Elevator Company Pty Limited Trading
as Otis Elevator Company.
1. Background
[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and
Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO)
in relation to certain employees of Otis Elevator Company Pty Limited (Otis). The application
was lodged on 6 June 2023.
[2] This application is amongst the first to be considered by the Commission following the
commencement of a number of bargaining changes brought about by the Fair Work Legislation
Amendment (Secure Jobs, Better Pay) Act 2022 (Amending Act). These changes commenced
on 6 June 2023 and amongst other matters, impact upon the making of PABOs and the approval
of protected action ballot agents who might conduct the ballot should an order be made.
[3] For context, I observe that a related application involving another bargaining
representative1 has also been made, but this was lodged prior to 6 June 2023 and has been dealt
with under the Act as it stood at that time. The related application involves the same bargaining
process and proposed enterprise agreement with Otis. Further, the proposed agreement in each
case is not a greenfields agreement, or a multi-enterprise agreement that is a cooperative
workplace agreement, and this application is permitted.2
[4] There has also been a notification time for the proposed agreement, the present
enterprise agreement has passed its nominal expiry date, and the application and accompanying
documentation is in order. The application and proposed order have also been provided by the
AMWU to Otis and the proposed ballot agent. This meets various requirements3 for the making
of a PABO.
[2023] FWC 1337
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1337
2
[5] On 6 June 2023, the Commission was advised that Otis objected to the application and
a hearing was conducted on 7 June 2023 to deal with that objection and some other aspects that
arise from the Amending Act.
[6] Having heard the matter, I advised the parties that an Order would be issued largely in
terms as sought by the applicant. This has been done.4 My reasons for so doing are set out
herein.
2. The Objection advanced by Otis – whether the AMWU has been and
is genuinely trying to reach an agreement
[7] Amongst the approval requirements for a PABO, in this case the Commission must be
satisfied that AMWU has been, and is, genuinely trying to reach an agreement with Otis. This
arises from s.443 of the Act which relevantly provides:
“443 When the FWC must make a protected action ballot order
(1) The FWC must make a protected action ballot order in relation to a proposed
enterprise agreement if:
(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying
to reach an agreement with the employer of the employees who are to be
balloted.
(2) The FWC must not make a protected action ballot order in relation to a proposed
enterprise agreement except in the circumstances referred to in subsection (1).”
[8] The Commission’s power to make a protected action ballot order under s.443 of the
FW Act is not discretionary in nature. Section 443(1) imposes a duty on the Commission to
make an order if two conditions have been met: first (in paragraph (a)), that an application for
such an order has been made under s.437 and, second (in paragraph (b)), that the Commission
is satisfied that each applicant for an order has been, and is, genuinely trying to reach an
agreement with the employer of the employees to be balloted. If these conditions are not met,
the Commission is prohibited from making an order: s.443(2). It is common ground that the
first requirement has been met in this matter.
[9] Otis contended that the AMWU has failed to give genuine consideration to the proposals
of other bargaining representatives for the agreement, and giving reasons for the bargaining
representative’s responses to those proposals. This arises from the good faith bargaining
requirements of s.228(d) of the Act.
[10] In particular, Otis contended that:
• There have been insufficient meetings for ‘genuine consideration’ of other proposals;
[2023] FWC 1337
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• It only made an offer to employees in the bargaining meeting on Friday 26 May
2023, so insufficient time for ‘genuine consideration’ has been given, prior to the
PABO application being filed;
• This offer addressed all claim items of both Otis and the employees. In this offer and
the following meeting on 2 June 2023, Otis confirmed that it was continuing to
review Superannuation and the proposed Income Protection Policy; and
• In the meeting on 2 June 2023, there was a clear misunderstanding of some of the
offer that Otis will address, which may affect whether the AMWU has given
‘genuine consideration’.
[11] The good faith bargaining requirements established by the Act are set out below:
“228 Bargaining representatives must meet the good faith bargaining requirements
(1) The following are the good faith bargaining requirements that a bargaining
representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially
sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the
agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining
representatives for the agreement, and giving reasons for the bargaining
representative’s responses to those proposals;(e) refraining from
capricious or unfair conduct that undermines freedom of association or
collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for
the agreement.
Note: See also section 255A (limitations relating to greenfields agreements).
(2) The good faith bargaining requirements do not require:
(a) a bargaining representative to make concessions during bargaining for the
agreement; or
(b) a bargaining representative to reach agreement on the terms.”
[12] In relation to the prerequisites of s.443(1) of the Act, the s.228 requirements do set some
of the context for the bargaining regime in which the assessment of the AMWU’s intentions is
made. However, they are not a substitute for the necessity that a bargaining representative has
been, and is, genuinely trying to reach an agreement with the employer of the employees to be
balloted.
[2023] FWC 1337
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[13] There are no rigid rules regarding the required point of negotiations that must be reached
before this requirement is met. All the relevant circumstances must be assessed to establish
whether this test has been met.5
[14] The AMWU contended that there have been 6 meetings conducted with Otis and the
other bargaining representatives in the bargaining process and it has been willing to discuss its
claims with the employer and has considered any counteroffer or proposal that Otis has made.
Further, it has conducted, along with the Communications, Electrical, Electronic, Energy,
Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), 2 mass
meetings that have considered and rejected offers from Otis that did not address certain key
outstanding claims. The AMWU also confirmed that it continued to seek an agreement with
Otis through the bargaining process. The basis of these propositions was confirmed in a
declaration provided by Mr Steven Isberg, Organiser with the AMWU. It is also common
ground that further bargaining is contemplated where Otis's most recent proposals will be
further discussed and considered by the 2 Unions acting as bargaining representatives.
[15] This provides a sound basis to demonstrate that the AMWU has been and is genuinely
trying to reach an agreement with Otis.
[16] The proposition advanced by Otis also includes the notion that the PABO application is
unnecessary at this juncture. Even if this was the case, this would not of itself mean that the
AMWU was not genuinely trying to reach an agreement.
[17] On the basis of the material before me, I was satisfied that the AMWU has been, and is,
genuinely trying to reach an agreement with Otis. This meets the requirements of s.443(1)(b)
of the Act.
3. The Protected Action Ballot Agent
[18] Section 444 of the Act now relevantly provides as follows:
“444 Ballot agent and independent advisor
… …
Protected action ballot agent
(1A) The FWC must, in accordance with subsections (1B) to (1D) of this section,
decide the person or entity that is to be the protected action ballot agent for the
protected action ballot.
(1B) The person or entity must be the person or entity specified in the application for
the protected action ballot order as the person or entity the applicant wishes to
be the protected action ballot agent, unless:
(a) the person or entity specified in the application does not meet the
requirements of subsection (1C) (unless subsection (1D) applies); or
(b) the FWC is satisfied that there are exceptional circumstances that justify
another person or entity being the protected action ballot agent.
(1C) The person or entity must be an eligible protected action ballot agent.
[2023] FWC 1337
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(1D) Subsection (1C) does not apply in relation to a person if the FWC is satisfied
that:
(a) there are exceptional circumstances that justify the ballot not being
conducted by an eligible protected action ballot agent; and
(b) the person is a fit and proper person to conduct the ballot; and
(c) any other requirements prescribed by the regulations are met.
Note: Other than the Australian Electoral Commission, an entity that is not a
person cannot be the protected action ballot agent for a protected action
ballot.”
[19] There are presently no eligible protected action ballot agents approved by the
Commission beyond the Australian Electoral Commission (AEC). The AMWU propose that
Democratic Outcomes Pty Ltd T/A CiVS (CiVS) be the ballot agent and, in effect, rely upon
the exceptional circumstances contemplated in s.444(1D)(a). CiVS has agreed to be the ballot
agent, and this has been confirmed in evidence that is before the Commission.
[20] The phrase ‘exceptional circumstances’ is not defined under s.444(1D)(a) or in any other
provision of the Act. In R v Kelly6 (Kelly), Lord Bingham of Cornhill CJ of the English Court
of Appeal noted that exceptional circumstances are those that form an exception, which are out
of the ordinary course, unusual, special or uncommon.7 His Lordship further noted that the
circumstances cannot be those that are regularly or normally encounter.8
[21] Considering the above, my view is that the test for whether exceptional circumstances
exist is whether the circumstances are such that they are out of the normal course of events,
unusual, uncommon or extraordinary. It is open to conclude that the recency of the amendments
to the protected action ballot agent provisions of the Act are exceptional circumstances. The
recency of these changes, and the fact that the scheme of the Act contemplates that there will
be a choice of eligible ballot agents, are unusual and are not something that have occurred
before, making it uncommon.
[22] Importantly, if it is found that exceptional circumstances do exist, those circumstances
must justify the FWC granting an order for a non-eligible person to act as the protected action
ballot agent. This arises from the language of s.444(1D)(a) and calls for consideration of the
purpose of the relevant provision.9
[23] Section 444 of the Act aims to protect the interests of the employees participating in the
ballot and those of the employer involved. Further, there is a statutory imperative arising from
the scheme of the Act and the associated regulations that any ballot that might authorise the
taking of industrial action be conducted in a proper, democratic, prompt and robust manner by
agents that are fit and proper persons to undertake that task.
[24] Accordingly, the exceptional circumstances that might justify why the FWC should
appoint an agent which is not an eligible protection action ballot agent should be assessed in
that context.
[25] I have found that exceptional circumstances do arise associated with the recency of the
new provisions. However, whilst each case must be assessed on its own merits, I would not
[2023] FWC 1337
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necessarily consider that by itself, the absence of eligible protected action ballot agents beyond
the AEC at this point would constitute exceptional circumstances warranting the exercise of the
discretion. However, in this case, the proposed ballot agent is already conducting a ballot for
another bargaining representative as part of the same bargaining process. Further, it would be
problematic if significantly different processes and timeframes were adopted for the related
PABOs. I have also taken into account that Otis took no issue with the approval of the proposed
ballot agent in all of the circumstances, and that the proposed agent can undertake the ballot in
a prompt manner. On balance, I am satisfied that there are exceptional circumstances that justify
the approval of the non-eligible ballot agent proposed in this matter.
[26] The proposed protected action ballot agent must also meet the requirements of
s.444(1D)((b) and (c) of the Act. This involves an assessment of whether the proposed protected
action ballot agent is a fit and proper person to conduct the ballot and whether they also meet
the requirements established by the regulations.
[27] As to fit and proper person, the AMWU has provided a Statutory Declaration of
Mr Mike Michael, Managing Director of CiVS. I observe that Mr Michael and CiVS have
previously been found by the Commission to be a fit and proper person to conduct a protected
action ballot based upon Mr Michael’s declared education, experience and attributes.10 The
material now before the Commission includes confirmation of extensive ballot and other
professional experience and the absence of criminal convictions of any kind within the business.
[28] The Fair Work Regulations 200911 now relevantly provide in reg 3.11 as follows:
“(1) For the purposes of paragraph 444(1D)(c) of the Act, this regulation prescribes
requirements that the FWC must be satisfied have been met before a person
becomes the protected action ballot agent for a protected action ballot.
Note: The person must also be a fit and proper person to conduct a protected action
ballot.
(2) The person must be capable of ensuring the secrecy and security of votes cast in
the ballot.
(3) The person must be capable of ensuring that the ballot will be fair and
democratic.
(4) The person must be capable of conducting the ballot expeditiously.
(5) The person must have agreed to be a protected action ballot agent.
(6) The person must be bound to comply with the Privacy Act 1988 in respect to the
handling of information relating to the protected action ballot.
(7) If the person is an industrial association or a body corporate, the FWC must be
satisfied that:
[2023] FWC 1337
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(a) each individual who will carry out the functions of the protected action
ballot agent for the industrial association or body corporate is a fit and
proper person to conduct the ballot; and
(b) the requirements in subregulations (2) to (6) are met for the individual.”
[29] The evidence provided on behalf of the proposed ballot agent also confirms to my
satisfaction compliance with all of these requirements. This includes details about the nature of
the information and other systems to be used for the ballot, compliance with the Privacy Act
and related principles, and steps that will be taken to ensure that the ballot is conducted fairly,
democratically, and expeditiously by fit and proper individuals.
[30] I have approved CiVS to act as the protected action ballot agent in this matter under
s.444(1D) of the Act.
[31] No independent advisor for the ballot was proposed or appointed.
4. Conclusions
[32] On the basis of the material before me, I was also satisfied that all of the requirements
for the issuing of the PABO in this matter were met. Under s.443 of the Act, the Commission
was then required to issue the PABO.
[33] The Commission is now obliged to conduct a compulsory conciliation conference under
s.448A of the Act involving all bargaining representatives for the proposed enterprise
agreement. I observe that this will also include the CEPU.12 This conference must be conducted
during the ballot period, which has been set at 15 working days from the commencement date
of the PABO (7 June 2023). The ballot period has been set having regard to the implications of
this requirement and the need to ensure that all bargaining representatives are given proper
notice of the conference. An Order will be issued requiring attendance at the conference, and it
is likely that Directions will also be issued to ensure that the parties attend the conference ready
to conduct meaningful negotiations.
[34] An order has been separately issued in PR762851.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
THE FAIR WORK COMMISSION AUSTRALLA THE SEAL
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr762851.pdf
[2023] FWC 1337
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PR762850
1 B2023/528 involving the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services
Union of Australia.
2 Act s 437(2).
3 Act ss. 437, 438, 440.
4 PR762851 issued 7 June 2023.
5 Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368 (Watson VP, Hamberger SDP, Roberts C),
Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the
Australian Manufacturing Workers’ Union and Ors [2015] FWCFB 210 (Ross J, Hatcher VP, Simpson C) at 34–35, 57–59.
6 [2000] 1 QB 198.
7 Ibid at [208].
8 Ibid. Although in a different statutory context, VP Lawler in CEPU v Australian Postal Corporation (2007) 167 IR 4 held
that the meaning adopted in Kelly was applicable to section 463(5) of the former Workplace Relations Act 1996 (equivalent to
s 443(5) of the current Act). This approach has also been widely adopted by the Commission and its predecessors.
9 CEPU v Australian Postal Corporation (2007) 167 IR 4 at [11].
10 See amongst many examples The Australian Workers’ Union v Jadestone Energy (Australia) Pty Ltd [2021] FWC 227.
11 As amended by the Fair Work and Other Legislation Amendment (Secure Jobs, Better Pay) Regulations 2023, made on
25 May 2023.
12 The Commission has been advised that there are no other bargaining representatives for the proposed agreement.
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr762851.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2009fwafb368.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwcfb210.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc227.htm
