Australian Education Union v Office of the Commissioner for Public Employment

[2022] FWC 1929

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Education Union
v

Office of the Commissioner for Public Employment

(B2022/709)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 JULY 2022

Proposed protected action ballot of employees of Office of the Commissioner for Public Employment

This is an application by the Australian Education Union (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 the Office of the Commissioner for Public Employment (Respondent).

On 20 July 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 Adam Lampe of the Applicant declared on 18 July 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 PR744058.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Education Union (AEU) filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for certain employees of the Office of the Commissioner for Public Employment (OCPE). The AEU sought to ballot its members to determine if they would support protected action, likely a strike, as part of ongoing negotiations with the OCPE. The OCPE did not oppose the application, which was subsequently determined by the Fair Work Commission without a hearing. The Commission found that the AEU had been genuinely trying to reach an agreement with the OCPE and that the statutory notification period had been met, in compliance with section 443(1) of the Act.

The legal issues the court needed to address included whether the AEU had satisfied the prerequisites for a protected action ballot under the Fair Work Act. This required the court to assess if the AEU had genuinely attempted to negotiate with the OCPE and if the statutory notification period had been appropriately fulfilled. Additionally, the court needed to consider if the ballot was necessary for the employees' interests in light of the ongoing negotiations.

In reaching its decision, the Fair Work Commission reviewed the material submitted by the AEU, including a statutory declaration by Adam Lampe of the AEU. The declaration outlined the union's efforts to negotiate with the OCPE and confirmed that the statutory notification period had been adhered to. The Commission found that the AEU had met the necessary criteria for the ballot and issued the required order. This decision was consistent with the requirements set out in the Fair Work Act, ensuring that the process was conducted fairly and in accordance with the law.

The Fair Work Commission issued an order allowing the AEU to proceed with the protected action ballot for its members. This order was issued separately, as noted in the decision. The Commission's ruling underscored the importance of meeting statutory requirements for protected action ballots and reinforced the legal framework governing industrial action in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established