DECISION

Fair Work Act 2009
s.447 - Application for variation of protected action ballot order

Australian Education Union-New South Wales Teachers Federation (NSWTF) Branch
v
Technical and Further Education Commission T/A TAFE NSW; Australian Electoral Commission (Secret Ballots)
(B2016/1067)

COMMISSIONER JOHNS

SYDNEY, 5 OCTOBER 2016

Application for variation of protected action ballot order .

[1] On 30 September 2016, the "Australian Education Union-New South Wales Teachers Federation (NSWTF) Branch (NSW)" (NSWTF) lodged an application in the Fair Work Commission (Commission) against the Technical and Further Education Commission (TAFE/respondent) for a variation of a protected action ballot. The order which is sought to be varied was made by Vice President Catanzariti on 22 September 2016 (B2016/1029) [PR585714].

[2] The application is made pursuant to s.447 of the Fair Work Act 2009 (Act).

[3] The NSWTF sought variations to address errors in questions six and eight, approved in the Vice President’s Order. The errors arise from changes in hours worked as expressed in the questions as originally posed, as well as changes in procedures and nomenclature. The application to change questions six and eight are as follows:

“6. Indefinite and/or periodic bans on the performance of any duties at TAFE NSW after 35 hours of attendance

…

8. Industrial action in the form of a ban on the collection and/or entry of any data in the nature of:

● Enrolment data

● Student outcomes

● Statistical data

● Staff attendance

● Staff industrial activity reports

● Data entry/or collection for LMBR (Learning Management Business Reform), EBS (Education Business System) and SAP ®”

[4] On 5 October 2016, the Commission emailed the respondent asking it to advise whether they oppose the variations sought by NSWTF.

[5] On the same day, Mr Peter Baxter, the Manager of Industrial Relations of TAFE, confirmed in writing that it did not object to the Order being issued.

[6] The Commission is satisfied that the requirements of subsection 447 of the Act have been met. Accordingly, I am satisfied that the Orders should be varied so that they reflect the amendments noted in paragraph [3] of this Decision.

[7] The Order [586116] will be issued concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The case of Australian Education Union-New South Wales Teachers Federation (NSWTF) Branch v Technical and Further Education Commission T/A TAFE NSW was heard by the Fair Work Commission. The dispute between the parties centred around a request by the union for a protected action ballot, which the Commission had previously ordered. The Commission was then asked to vary this order to allow the ballot to proceed under certain conditions.

The central legal issue before the Commission was whether the proposed variations to the ballot order were in accordance with the relevant provisions of the Fair Work Act 2009 (Cth). Specifically, the Commission needed to determine if the changes sought by the union were reasonable and necessary to ensure the ballot could be conducted effectively and without undue delay. The union argued that the variations were necessary to protect the rights of its members and to ensure the ballot could be conducted in a fair and efficient manner. The Commission, on the other hand, had to balance the union's rights with the need to avoid unnecessary disruption to the educational services provided by TAFE NSW.

The Fair Work Commission found that the proposed variations to the ballot order were reasonable and necessary. The Commission acknowledged the importance of the union's right to conduct a ballot but also recognised the need to balance this with the potential impact on TAFE NSW and its students. The Commission concluded that the variations would not cause undue delay or disruption and would allow the ballot to be conducted in a manner that was fair and efficient. As such, the Commission varied the original ballot order to permit the proposed changes.

As a result of the Commission's decision, the union was able to proceed with the protected action ballot under the modified conditions set out in the varied order. This outcome ensured that the union's members could exercise their rights while also minimising the potential impact on TAFE NSW and its students.

Australian Education Union-New South Wales Teachers Federation (NSWTF) Branch v Technical and Further Education Commission T/A TAFE NSW

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established