DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
ABB Australia Pty Ltd
(B2021/880)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 SEPTEMBER 2021

Proposed protected action ballot of employees of ABB Australia Pty Ltd

[1] 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of ABB Australia Pty Ltd (Respondent).

[2] On 14 September 2021, 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 Steve Banks 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 PR734012.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission was a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and ABB Australia Pty Ltd regarding a proposed protected action ballot of employees. The union sought to conduct a ballot of its members to determine whether they would support protected industrial action, while ABB contested the union's right to conduct such a ballot. The dispute was brought before the Fair Work Commission, which has jurisdiction over industrial relations matters in Australia.

The central legal issues the Commission needed to resolve were whether the union had complied with the necessary procedural requirements under the Fair Work Act 2009, and whether the proposed industrial action was protected action as defined by the Act. Specifically, the Commission had to consider whether the union had provided ABB with sufficient information to enable the company to make an application to the Commission for an order preventing the proposed protected action, and whether the proposed action related to a "workplace matter" as required by the Act.

The Commission found that the union had not provided ABB with sufficient information to enable the company to make an application for an order preventing the proposed protected action. Consequently, the Commission held that the union's proposed ballot did not comply with the procedural requirements under the Fair Work Act. As a result, the Commission issued an order prohibiting the union from proceeding with the ballot. The Commission did not need to consider whether the proposed action related to a "workplace matter" as the procedural issue was determinative.

The Fair Work Commission issued an order prohibiting the union from proceeding with the proposed ballot of its members. The Commission found that the union had not provided ABB with sufficient information to enable the company to make an application for an order preventing the proposed protected action, and therefore the union's proposed ballot did not comply with the procedural requirements under the Fair Work Act. The Commission's decision underscores the importance of unions providing sufficient information to employers to enable them to make an application to the Commission for an order preventing proposed protected action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 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