Australian Education Union v Victoria University

[2024] FWC 2993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Education Union
v

Victoria University

(B2024/1401)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 29 OCTOBER 2024

Proposed protected action ballot of employees of Victoria University

This is an application by the Australian Education Union (AEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Victoria University (VU or Employer).

On 28 October 2024, the Commission was advised that the Employer, in effect, did not object to 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 declaration of Shane Wright, Union Official, setting out the steps taken by the AEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with VU, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 26 November 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780699.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 19 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Education Union (AEU) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Victoria University (VU). The application was made under section 437 of the Fair Work Act 2009. The employer, Victoria University, did not object to the application, allowing the matter to be determined on the papers without a hearing. The AEU sought to conduct a ballot to enable employees to vote on a proposed agreement, which was the subject of ongoing bargaining between the AEU and VU.

The legal issues before the Commission included whether the AEU had genuinely tried to reach an agreement with VU and whether all requirements under section 443(1) of the Act had been met. Additionally, the Commission had to determine the closing date for the ballot, which would establish the ballot period for the purpose of section 448A(2) of the Act. The AEU provided a declaration by a Union Official, Shane Wright, detailing the steps taken in bargaining with VU and confirming the union's genuine efforts to reach an agreement.

The Deputy President, Wright, was satisfied that the AEU had met all requirements for the ballot and had genuinely attempted to reach an agreement with VU. The Deputy President determined that the date by which voting would close was 26 November 2024, effectively 19 working days from the making of the order. The ballot was to be conducted by TrueVote Pty Ltd, an approved agent under section 468A of the Act. The Commission also assigned the matter to another Member to conduct a compulsory conciliation conference, requiring the attendance of all bargaining representatives at the proposed enterprise agreement.

The Deputy President issued an order approving the ballot and determining the closing date for voting. Another order was issued for the compulsory conciliation conference, with directions to ensure that the parties were ready to conduct meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established