Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v ABB Australia Pty Ltd T/A Bob White Electrix

[2014] FWC 7353

FAIR WORK COMMISSION

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 T/A Bob White Electrix
(B2014/1471)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 OCTOBER 2014

Proposed protected action ballot of employees of ABB Australia Pty Ltd T/A Bob White Electrix.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) 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 T/A Bob White Electrix (the Respondent Company).

[2] On 16 October 2014 my associate was advised that the Respondent Company did 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 Ms Zoe Watkins of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s. 443(1) of the Act have been met.

[5] An order has been issued separately in PR556699.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia brought proceedings against ABB Australia Pty Ltd T/A Bob White Electrix. The union sought an injunction to prevent the company from implementing a proposed restructure that would result in the redundancy of 25 employees. The dispute was heard by the Fair Work Commission.

The central issue before the Commission was whether the proposed restructuring constituted a genuine redundancy or if it was a pretext to avoid a protected action ballot. The Commission had to determine if the employees were entitled to a ballot under the Fair Work Act 2009 and whether the company had complied with the relevant provisions of the Act.

The Fair Work Commission found that the proposed restructuring was not a genuine redundancy and that the company had not complied with the requirements to hold a ballot before proceeding with the redundancies. The Commission held that the company had not provided sufficient evidence to demonstrate that the redundancies were genuinely necessary and that the restructuring was not an attempt to avoid the ballot. The Commission issued an injunction preventing the company from implementing the proposed restructure until a ballot had been held and the employees had been given an opportunity to vote on the proposed action.

The Fair Work Commission ordered that a ballot be held within 14 days of the decision and that the company must not proceed with the proposed redundancies until the ballot had been completed. The company was also ordered to provide the union with all necessary information to facilitate the ballot process. The injunction was to remain in place until the ballot had been held and the employees had been given an opportunity to vote on the proposed action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established