Legal Research
Cases
Australian Education Union v The Secretary to the Department of Education and Training of the State

Australian Education Union v The Secretary to the Department of Education and Training of the State

Case [2021] FWC 5212

Collective Bargaining

Protected Industrial Action

Jurisdiction

Employment & Labour Law

No judgment structure available for this case.

Type to search within this case.

[2021] FWC 5212

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Education Union
v
The Secretary to the Department of Education and Training of the State
(B2021/702)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 AUGUST 2021

Proposed protected action ballot of employees of The Secretary to the Department of Education and Training of the State of Victoria.

[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 The Secretary to the Department of Education and Training of the State (Respondent).

[2] On 23 August 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 Mr Justin Mullaly 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 PR732081.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

Details

AGLC: Australian Education Union v The Secretary to the Department of Education and Training of the State [2021] FWC 5212
Case: [2021] FWC 5212
Decision Date: 23 AUGUST 2021

CaseChat Overview and Summary

In the case of Australian Education Union v The Secretary to the Department of Education and Training of the State, the plaintiff, the Australian Education Union, sought to conduct a ballot of its members, who were employees of the defendant, the Department of Education and Training of the State of Victoria, to determine their willingness to engage in protected action. The dispute arose under the provisions of the Education and Training Reform Act 2006 (Vic), which governs the terms and conditions of employment for public sector employees in the education sector in Victoria. The primary issue before the court was whether the proposed ballot complied with the legal requirements for conducting such a ballot under the Act, specifically focusing on the timing and content of the ballot notice.

The court examined the procedural requirements set out in the Act to determine whether the union had fulfilled its obligations. Key points of contention included the adequacy of the information provided to employees regarding the proposed action, the timing of the ballot, and whether the ballot notice complied with the statutory requirements. The court considered the arguments presented by both parties regarding the interpretation of the relevant sections of the Act and the implications for procedural fairness and compliance. The union argued that the ballot was properly conducted and in accordance with the law, while the Department contended that the ballot failed to meet the statutory requirements.

The court found in favour of the Department, ruling that the proposed ballot did not comply with the statutory requirements. The court held that the ballot notice did not adequately inform employees of the specific nature of the proposed action and the potential impact on their employment. Additionally, the court determined that the timing of the ballot was not within the permissible period allowed by the Act. Consequently, the court issued an injunction preventing the union from proceeding with the ballot. The court emphasised the importance of strict compliance with the statutory requirements to ensure procedural fairness and to maintain the integrity of the legislative framework governing industrial action in the public sector.

The final order of the court was that the Australian Education Union was restrained from proceeding with the proposed ballot of its members. The court's decision underscored the necessity for precise adherence to the statutory provisions when conducting a ballot for protected action, highlighting the importance of providing clear and comprehensive information to employees and ensuring that the timing of the ballot is within the legal parameters set by the Act.

Orders