Australian Education Union v The State of Victoria (Department of Education and Early Childhood Development)

In this case, the Australian Education Union sought a declaration that the Department of Education and Early Childhood Development in Victoria was required to allow its employees to conduct a protected action ballot. The matter was heard in the Fair Work Commission, the tribunal established under the Fair Work Act 2009 (Cth) to handle workplace disputes. The union argued that the Department had refused to facilitate a ballot on industrial action, despite the union's application being in compliance with the statutory requirements.

The central issue before the Commission was whether the Department's refusal to allow the ballot was lawful under the Fair Work Act. The union contended that the Department's actions were unreasonable and constituted an interference with the employees' right to engage in protected industrial action. The Department, on the other hand, maintained that the ballot was not permitted because it was not reasonably practical to conduct it during school hours without disrupting the educational process for students.

The Commission found that the Department's refusal to facilitate the ballot was unlawful. The tribunal held that the Department had not adequately demonstrated that conducting the ballot during school hours would necessarily cause significant disruption. The Commission emphasised the importance of protecting the rights of employees to engage in protected industrial action, while also balancing these rights against the need to maintain educational services for students. The tribunal concluded that the Department's refusal was not justified, as it had not sufficiently proven that the practicalities of conducting the ballot would lead to a significant disruption of school operations.

Consequently, the Fair Work Commission ordered the Department of Education and Early Childhood Development to allow the Australian Education Union to conduct the protected action ballot. The Commission found that the Department's refusal was unreasonable and in breach of the employees' rights under the Fair Work Act. The decision underscored the importance of ensuring that employees' rights to engage in protected industrial action are upheld, while also requiring that such actions are balanced with the need to maintain essential services.