Australian Workers' Union, the Victorian Branch v Federation University Australia

[2023] FWC 1178

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The - Victorian Branch
v

Federation University Australia

(B2023/475)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 MAY 2023

Proposed protected action ballot of employees of Federation University Australia

This is an application by The Australian Workers’ Union - Victoria Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Federation University Australia (Respondent).

On 18 May 2023, my Associate was advised that the Respondent 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 Mr Ross Kenna 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.

An order has been separately issued in PR762029.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, Victorian Branch (Applicant) filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning specific employees of Federation University Australia (Respondent). The application pertained to a proposed protected action ballot, aimed at determining whether the employees would support a specific form of protected action. The Fair Work Commission, presided over by Deputy President Clancy, reviewed the application on 18 May 2023. Notably, the Respondent did not oppose the application, leading the Deputy President to decide on the matter based on the submitted documents without necessitating a hearing.

The primary legal issues before the court were whether the notification period stipulated in the Act had elapsed and whether the requirements outlined in section 443(1) of the Act had been fulfilled. The Applicant needed to demonstrate that it had genuinely attempted to reach an agreement with the Respondent and that the requisite notification period had passed. The declaration submitted by Mr Ross Kenna, representing the Applicant, was instrumental in substantiating these claims.

After reviewing the materials, including the declaration by Mr Kenna, the Deputy President determined that the notification period had indeed passed and that the Applicant had genuinely endeavoured to negotiate with the Respondent. Consequently, the Deputy President was satisfied that the requirements under section 443(1) of the Act were met, leading to the approval of the application for a protected action ballot order. An additional order was issued in PR762029, formalising the decision.

The Fair Work Commission's decision underscores the importance of adherence to notification periods and genuine bargaining efforts as prerequisites for protected action ballots. The Deputy President's ruling affirms the Applicant's right to proceed with the ballot, provided the procedural requirements are satisfied.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established