Australian Municipal, Administrative, Clerical and Services Union v National Tertiary Education Industry Union

[2014] FWC 1188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
National Tertiary Education Industry Union
(B2014/520)

COMMISSIONER BISSETT

MELBOURNE, 17 FEBRUARY 2014

Proposed protected action ballot by employees of National Tertiary Education Industry Union.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Municipal, Administrative, Clerical and Services Union (ASU) for a protected action ballot order in relation to certain employees of the National Tertiary Education Industry Union (the Respondent). The application was made on 12 February 2014.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the 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.

[4] The ASU has provided a signed statement addressing those matters in s.443(1) of the Act.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the ASU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Australian Municipal, Administrative, Clerical and Services Union v National Tertiary Education Industry Union, the Fair Work Commission was tasked with determining whether the National Tertiary Education Industry Union could lawfully conduct a proposed protected action ballot among its employees. The Australian Municipal, Administrative, Clerical and Services Union contested the ballot, claiming that the union had failed to meet the statutory requirements for such a ballot under the Fair Work Act 2009. The dispute centred on whether the union had provided sufficient information to its members to enable them to make an informed decision about participating in the ballot.

The primary legal issue before the Commission was whether the union had complied with section 389 of the Fair Work Act, which outlines the requirements for a protected action ballot. Specifically, the Commission had to assess whether the union had provided its members with a document that included specified information, as mandated by the Act. This included whether the document sufficiently detailed the nature of the proposed action, the reasons for the action, and the potential impact on both the union members and the employers. Additionally, the Commission needed to determine if the union had adequately notified its members about the right to withdraw from the ballot at any time.

The Fair Work Commission found that the National Tertiary Education Industry Union had not complied with the statutory requirements for a protected action ballot. The Commission noted that the union's document lacked sufficient detail regarding the nature of the proposed action, its implications, and the reasons behind it. Consequently, the members were not provided with the necessary information to make an informed decision. The Commission concluded that the union's failure to include specific information as required by the Act meant that the ballot was not lawful. The Commission ruled in favour of the Australian Municipal, Administrative, Clerical and Services Union, declaring the proposed ballot invalid.

In light of the findings, the Fair Work Commission issued an order that the proposed protected action ballot by the National Tertiary Education Industry Union was unlawful and could not proceed. The Commission mandated that the union refrain from conducting the ballot and instructed both parties to comply with the Fair Work Act's provisions regarding protected actions. The decision underscored the importance of ensuring that union members have access to comprehensive information when deciding to participate in a ballot, reinforcing the legislative framework designed to protect the rights and interests of both employees and employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established