Australian Education Union v Victoria University

[2014] FWC 8104

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Education Union
v
Victoria University
(B2014/1103)

DEPUTY PRESIDENT SMITH

MELBOURNE, 14 NOVEMBER 2014

Proposed protected action ballot of employees of Victoria University.

[1] This is an application for a protected action ballot order by the Australian Education Union on behalf of their members employed by Victoria University. The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[2] The applicant seeks to ballot employees of Victoria University who are members of the Australian Education Union and who would be subject to the proposed enterprise agreement.

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

443 When FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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) The FWC 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

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

(5) If the FWC 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] The next matter to which attention must be given is whether or not the applicant is genuinely trying to reach agreement with the employer of the employees who are to be balloted. As there is no evidence to suggest otherwise, I am satisfied that the parties are genuinely trying to reach agreement.

[5] I have relied upon the Statutory Declaration of Mr David Bunn, an Industrial Officer for the Australian Education Union, which provides information about matters relevant to s.443 of the Act. I am satisfied that each of the relevant requirements of the Act, in particular those set out in s.443, have been met. Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as now sought by the Australian Education Union. Accordingly, an order [PR557763] based on the draft order provided by the Australian Education Union will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Education Union, representing employees of Victoria University, sought a declaration that the university had contravened section 68 of the Fair Work Act 2009 by unreasonably refusing to provide information to the union for the purpose of holding a protected action ballot. The case was heard in the Federal Circuit Court of Australia. The union had refused to provide certain information to the union, claiming that it was commercially sensitive and not necessary for the purpose of the ballot. The union argued that the information was necessary to inform the ballot and to ensure that it was conducted in an appropriate and efficient manner.

The court had to determine whether the university's refusal to provide the information was reasonable and whether the union was entitled to a declaration that the refusal was unreasonable. The court considered the relevant provisions of the Fair Work Act and the common law principles applicable to the disclosure of commercial information. The court found that the university's refusal to provide the information was unreasonable as the union had demonstrated that the information was necessary for the purpose of the ballot and that the university had not demonstrated that the information was commercially sensitive to the extent that it could not be disclosed.

The court held that the university had contravened section 68 of the Fair Work Act by unreasonably refusing to provide the information to the union. The court granted the union's application for a declaration to this effect. The court also ordered the university to provide the information to the union within 14 days of the judgment and to take all necessary steps to facilitate the conduct of the ballot. The university was also ordered to pay the union's costs of the proceedings.

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