Australian Education Union v Technical and Further Education Commission T/A TAFE NSW

[2013] FWC 1030

[2013] FWC 1030

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Education Union
v
Technical and Further Education Commission T/A TAFE NSW
(B2013/35)

DEPUTY PRESIDENT SMITH MELBOURNE, 14 FEBRUARY 2013

Proposed protected action ballot by employees of NSW Technical and Further Education Commission (TAFE NSW).

[1] This is an application for a protected action ballot by members of the Australian Education Union (AEU) employed by the Technical and Further Education Commission T/A TAFE NSW (TAFE NSW). The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[2] The applicant seeks to ballot employees of TAFE NSW who are members of the AEU and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply s.443 of the Act which provides:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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.

(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[4] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. I am satisfied, after reading the statutory declaration of Mr Maurie Mulheron, on behalf of the AEU, that this is the case.

[6] TAFE NSW indicated that it consents to the granting of this Order. As such, I have no reason to believe that an issue regarding whether the applicant has been genuinely trying to reach an agreement arises.

[7] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AEU. My order will issue shortly.

DEPUTY PRESIDENT

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