Australian Education Union New South Wales Teachers Federation Branch v Technical and Further Education Commission of New South Wales T/A TAFE NSW

[2022] FWC 2201

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Education Union New South Wales Teachers Federation Branch
v

Technical and Further Education Commission of New South Wales T/A TAFE NSW

(B2022/1239)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 AUGUST 2022

Proposed protected action ballot of employees of TAFE NSW

This is an application by the Australian Education Union New South Wales Teachers Federation Branch (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 Technical and Further Education Commission of New South Wales T/A TAFE NSW (Respondent).

On 17 August 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Samuel Francis Clay of the Applicant declared on 16 August 2022, 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 PR744944.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Australian Education Union New South Wales Teachers Federation Branch (AEU NSW TF) seeking an order for a protected action ballot in relation to certain employees of the Technical and Further Education Commission of New South Wales T/A TAFE NSW. The application was made under section 437 of the Fair Work Act 2009. TAFE NSW did not oppose the application and the matter was determined on the papers without a hearing.

The central issue for the Commission to decide was whether the AEU NSW TF had satisfied the requirements of the Fair Work Act to conduct a protected action ballot. This required the Commission to consider whether the union had genuinely tried to reach agreement with TAFE NSW, and whether the notification time for the proposed agreement had been met. The AEU NSW TF provided a statutory declaration from Samuel Francis Clay, which outlined the steps taken in bargaining with TAFE NSW and confirmed that the union had been genuinely trying to reach agreement.

The Vice President of the Fair Work Commission, Catanzariti, determined that the AEU NSW TF had met the requirements for a protected action ballot. The Vice President found that the union had genuinely attempted to negotiate with TAFE NSW and that the notification time for the proposed agreement had been met. As a result, the Vice President issued an order in accordance with section 437 of the Fair Work Act, allowing the AEU NSW TF to conduct a protected action ballot. The order was issued separately in PR744944.

The Fair Work Commission's decision provides guidance to unions and employers on the process for conducting a protected action ballot under the Fair Work Act. The decision confirms that the Commission will consider whether a union has genuinely tried to reach agreement with an employer, and whether the notification time for a proposed agreement has been met, when deciding whether to grant an order for a protected action ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established