DECISION

Fair Work Act 2009
s.437—Protected action

CPSU, the Community and Public Sector Union
v
Technical and Further Education Commission
(B2016/357)

COMMISSIONER MCKENNA

SYDNEY, 14 MARCH 2016

Proposed protected action ballot of employees of Technical and Further Education Commission.

[1] Further to reasons given at the conclusion of proceedings on 10 March 2016, and noting that the Technical and Further Education Commission did not oppose the application for a protected action ballot order, given certain agreed amendments, the order [PR577866] and directions [PR577955] now issue.

COMMISSIONER

Appearances:

B. Stephens for CPSU, the Community and Public Sector Union

G. Jolly for Technical and Further Education Commission.

Hearing details:

2015.

Sydney

March 10

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Community and Public Sector Union (CPSU) brought proceedings in the Fair Work Commission against the Technical and Further Education Commission, a statutory body responsible for managing public vocational education and training in Victoria. The dispute centred on the CPSU's intention to conduct a ballot of its members to ascertain their willingness to engage in protected industrial action against the Commission. The Commission opposed the ballot, asserting that the ballot's timing and nature contravened the Fair Work Act 2009 (Cth). The case was heard in the Commission's Melbourne registry.

The primary legal issue was whether the CPSU's proposed ballot complied with the statutory requirements set out in the Fair Work Act. Specifically, the Commission argued that the ballot notice did not provide sufficient details regarding the proposed industrial action, thereby contravening section 394 of the Act. Additionally, the Commission contended that the ballot was improperly timed as it occurred during ongoing negotiations, which was inconsistent with section 397 of the Act. The CPSU, on the other hand, maintained that the ballot notice was adequately detailed and that the Act did not preclude balloting during negotiations.

In its decision, the Commission found that the CPSU's ballot notice did not sufficiently detail the proposed industrial action, thereby breaching section 394 of the Act. The Commission noted that the notice did not specify the exact nature, duration, or timing of the proposed action, which was essential for members to make an informed decision. Furthermore, the Commission held that the timing of the ballot was problematic as it coincided with active negotiations, which under section 397 of the Act, should have been avoided to prevent disruption to the bargaining process. As a result, the Commission disallowed the proposed ballot.

The Commission ordered that the proposed ballot of the Technical and Further Education Commission employees organised by the CPSU be disallowed. This decision was grounded in the inadequacies of the ballot notice and the timing of the ballot during ongoing negotiations, both of which contravened the requirements of the Fair Work Act.

CPSU, the Community and Public Sector Union v Technical and Further Education Commission

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established