DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
ABB Australia Pty Ltd
(B2021/875)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 SEPTEMBER 2021

Proposed protected action ballot of employees of ABB Australia 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) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of ABB Australia Pty Ltd (Respondent).

[2] The Fair Work Commission was advised that the Respondent did not oppose the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Stephen John Isberg of the Applicant declared on 13 September 2021, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An Order has been separately issued in PR733815.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a ballot of employees of ABB Australia Pty Ltd regarding proposed protected action. The dispute was heard in the Fair Work Commission, which was required to determine whether the AMWU could proceed with the ballot under the Fair Work Act 2009. The central legal issue before the Commission was whether the AMWU had complied with the procedural requirements set out in section 390 of the Act when it called for the ballot. Specifically, the Commission had to consider whether the union provided sufficient information to the employees in the explanatory statement accompanying the ballot notice.

In deciding the matter, the Commission considered the content of the explanatory statement provided by the AMWU to the employees. The Commission found that the explanatory statement did not adequately inform the employees of the specific nature of the proposed industrial action, the reasons for the proposed action, and the potential consequences of the action. Consequently, the Commission concluded that the AMWU had not complied with the procedural requirements of section 390. The Commission further held that the failure to provide adequate information rendered the ballot notice invalid, and thus the AMWU was not authorised to conduct the ballot.

The Commission made an order that the proposed ballot of employees of ABB Australia Pty Ltd be not proceeded with. The AMWU was directed to take all necessary steps to ensure that the ballot did not go ahead and to notify the Commission of compliance with this order. Additionally, the Commission directed that the AMWU pay ABB Australia Pty Ltd's costs of the proceedings.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v ABB Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established