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
v
ABB Australia Pty Ltd
(B2017/304)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 APRIL 2017

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

[2] On 12 April 2017 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr G Glover 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.

[5] An order has been separately issued in PR591843.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute before the Fair Work Commission was between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and ABB Australia Pty Ltd. The union sought to conduct a protected action ballot of its members, employees of ABB, to ascertain their views on potential industrial action. ABB opposed the ballot, arguing it was not a genuine attempt to resolve workplace issues and would cause significant financial and operational disruption. The matter was heard by the Full Bench of the Fair Work Commission.

The legal issues before the court included whether the union's proposed ballot was genuinely intended to resolve a genuine workplace issue and whether the ballot would cause undue hardship to ABB. The court examined the union's motives, the potential impact on ABB's operations, and the likelihood of the ballot leading to meaningful negotiations. The court also considered the proportionality of the action and the balance of rights between the union and the employer.

The Full Bench found that the union's proposed ballot was not genuinely intended to resolve a genuine workplace issue. The court noted that the union had not made a genuine attempt to negotiate with ABB and that the ballot was more about asserting the union's position rather than seeking a resolution. The court also found that the proposed ballot would cause significant hardship to ABB, potentially affecting its ability to meet customer obligations and causing financial loss. The court concluded that the ballot was not warranted and dismissed the union's application.

The Fair Work Commission dismissed the union's application for authorisation of the proposed ballot and made orders that the union refrain from taking any protected action in relation to the ballot. The union was also ordered to pay ABB's costs of the proceedings.

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