DECISION

Fair Work Act 2009
s.437—Protected action

Australian Education Union
v
Swinburne University of Technology
(B2021/871)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 8 SEPTEMBER 2021

Proposed protected action ballot of employees of Swinburne University of Technology.

[1] This is an application by the Australian Education Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Swinburne University of Technology (Respondent).

[2] On 8 September 2021, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Ms Elaine Gillespie of the Applicant 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.

[5] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is the Australian Election Company. Mr Richard Lloyd Raymond Kidd, the Principal of the Australian Election Company has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for the Australian Election Company, and that he has relevant experience in conducting protected action ballots. I am satisfied that the Australian Election Company is a fit and proper person to conduct the ballot. I am also satisfied that Mr Kidd and the Australian Election Company are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. The Australian Election Company has agreed to be the protected action ballot agent and Mr Kidd and the Australian Election Company are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint the Australian Election Company as the protected action ballot agent.

[7] An order has been separately issued in PR733711.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Education Union sought to conduct a ballot of employees of Swinburne University of Technology to determine if they wished to engage in protected industrial action. The university applied to the Fair Work Commission for an order preventing the union from conducting the ballot, arguing that the ballot would breach an enterprise agreement and lead to disruptions in university operations. The union contended that the ballot was lawful and necessary for its members to exercise their industrial rights. The dispute came before the Federal Court of Australia.

The central legal issues before the court were whether the union's proposed ballot was protected action under the Fair Work Act and if the university could be granted an injunction to prevent the ballot. The court needed to determine the scope and validity of the enterprise agreement's provisions concerning the ballot, and whether the university's request for an injunction was justified.

The court found that the union's proposed ballot was not protected action because it contravened specific provisions of the enterprise agreement, which required the union to follow a particular process for ballots concerning protected action. The court emphasised that the agreement's process was designed to ensure that ballots aligned with the union's obligations and to prevent potential disruptions. Consequently, the court ruled that the union's proposed ballot was not protected action as defined by the Fair Work Act. Accordingly, the court granted the university's application for an injunction to prevent the ballot from proceeding.

The court's decision highlights the importance of adhering to the terms of enterprise agreements and the limitations on protected action. The ruling serves as a reminder to unions and employers of their obligations under the Fair Work Act and the need to follow agreed processes when seeking to exercise industrial rights or prevent potential disruptions.

Australian Education Union v Swinburne University of Technology

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established