Australian Workers' Union v Federation University Australia Summary

[2022] FWC 2849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Federation University Australia

(B2022/1601)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 OCTOBER 2022

Proposed protected action ballot of employees of Federation University Australia.

This is an application by the Australian Workers’ Union (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 24 October 2022, 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 Michael Douglas Derrick 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 PR747142.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union filed an application under section 437 of the Fair Work Act 2009 seeking a protected action ballot order in relation to certain employees of Federation University Australia. The application was made due to the union's contention that it had been genuinely attempting to reach an agreement with the university but had been unsuccessful. The university did not object to the application, leading to the decision being made on the papers without the need for a hearing.

The primary legal issue before the Deputy President was whether the union had met the requirements for a protected action ballot under the Fair Work Act. This involved establishing that a notification time was in effect for the proposed agreement and that the union had genuinely attempted to reach an agreement with the university. The union's declaration by Mr Michael Douglas Derrick was central to this determination, as it outlined the union's bargaining efforts and the lack of successful negotiations with the university.

After reviewing the evidence, including the union's declaration and the lack of objection from the university, the Deputy President concluded that the union had satisfied the criteria for a protected action ballot. The union had demonstrated that it had been genuinely attempting to reach an agreement, and the notification time for the proposed agreement was in effect. Consequently, the Deputy President determined that the requirements under section 443(1) of the Act had been met. A separate order was issued in PR747142 to facilitate the ballot.

The court's decision confirms the union's eligibility to proceed with a protected action ballot for the employees in question. The Deputy President's ruling hinged on the union's declaration and the absence of objections from the university, underscoring the importance of clear documentation and genuine efforts in bargaining processes under the Fair Work Act.

Australian Workers' Union v Federation University Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established