Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ABB Australia Pty Limited

[2018] FWC 1164

FAIR WORK COMMISSION

DECISION

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

ABB Australia Pty Limited

(B2018/117)

Deputy President Gostencnik

MELBOURNE, 23 FEBRUARY 2018

Proposed protected action ballot of employees of ABB Australia Pty Limited.

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of ABB Australia Pty Limited (Respondent).

On 23 February 2018 my associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr S Bankes of the Applicant 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.

An order has been separately issued in PR600666.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ABB Australia Pty Limited, the matter before the Fair Work Commission was a dispute concerning the proposed protected action ballot of employees of ABB Australia Pty Limited. The Union sought approval for a ballot of its members, who were employees of ABB Australia, to determine whether they would support industrial action. The company, ABB Australia, opposed the ballot on several grounds, including the potential for industrial action to harm the business and the belief that the ballot was not in accordance with the relevant industrial instruments.

The legal issues that the Commission was required to decide included whether the proposed industrial action was protected action as defined by the Fair Work Act 2009, and whether the ballot was necessary and appropriate in the circumstances. The Commission also needed to consider whether the proposed industrial action was in response to a genuine dispute between the employees and their employer, and whether the ballot would be conducted in a fair and reasonable manner. Furthermore, the Commission needed to assess whether the potential harm to the business, as argued by the employer, outweighed the employees' right to take protected industrial action.

The Commission found that the proposed industrial action was protected action and that the ballot was necessary and appropriate. The Commission determined that there was a genuine dispute between the employees and the employer, and that the proposed industrial action was a reasonable way of attempting to resolve that dispute. The Commission also found that the ballot would be conducted in a fair and reasonable manner. While acknowledging the potential harm to the business, the Commission determined that the employees' right to take protected industrial action outweighed the potential harm to the business. The Commission approved the ballot and directed that it be conducted in accordance with the Fair Work Act 2009.

The final orders of the Commission were that the Union could proceed with the proposed ballot of its members, who were employees of ABB Australia, and that the ballot be conducted in a manner that was fair and reasonable and in accordance with the Fair Work Act 2009. The Commission also directed that the ballot be conducted within a specified timeframe and that the results of the ballot be provided to both parties. The Commission further directed that any industrial action taken as a result of the ballot be in accordance with the Fair Work Act 2009 and any relevant industrial instruments.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established