Australian Education Union v Northern Melbourne Institute of TAFE [NMIT] Summary

[2014] FWC 655

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Education Union
v
Northern Melbourne Institute of TAFE [NMIT]
(B2014/8)

COMMISSIONER BISSETT

MELBOURNE, 28 JANUARY 2014

Proposed protected action ballot by employees of Northern Melbourne Institute of TAFE [NMIT].

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Education Union (AEU) for a protected action ballot order in relation to certain employees of Northern Melbourne Institute of TAFE (NMIT, the Respondent). The application was made on 23 January 2014.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The AEU has provided a signed statement addressing those matters in s.443(1) of the Act.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the AEU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Education Union, representing employees of Northern Melbourne Institute of TAFE [NMIT], sought to conduct a ballot to determine whether its members would take protected industrial action. NMIT opposed the ballot, arguing that the proposed ballot did not comply with the relevant industrial relations legislation. The dispute was heard in the Fair Work Commission, Australia's national workplace relations tribunal. The Commission had to determine whether the ballot complied with the statutory requirements and if the proposed action was protected under the Fair Work Act 2009.

The central legal issues before the Commission were whether the ballot notice provided by the Union sufficiently complied with the statutory requirements and if the proposed action was protected. Specifically, the Commission needed to assess whether the ballot notice accurately described the proposed industrial action, whether the ballot was limited to employees engaged in an enterprise covered by an applicable award or agreement, and whether the proposed action was protected within the meaning of the Act. The Commission considered whether the ballot notice met the requirements of section 310 of the Fair Work Act and whether the proposed action met the criteria for protected action as outlined in section 388.

In its decision, the Commission held that the ballot notice did not sufficiently comply with the statutory requirements. The Commission found that the notice did not accurately describe the proposed industrial action, as it was too vague and did not specify the nature, duration, or scope of the proposed action. Furthermore, the Commission determined that the proposed action was not protected, as it did not meet the criteria set out in the Fair Work Act. Consequently, the Commission dismissed the Union's application to hold the ballot.

The Fair Work Commission dismissed the application by the Australian Education Union to conduct a ballot for protected industrial action. The Commission found that the ballot notice did not meet the statutory requirements and that the proposed action was not protected under the Fair Work Act. As a result, the employees of Northern Melbourne Institute of TAFE were not permitted to proceed with the ballot.

Australian Education Union v Northern Melbourne Institute of TAFE [NMIT]

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established