National Tertiary Education Industry Union v Australian National University Summary

[2013] FWC 6066

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
Australian National University
(B2013/208)

COMMISSIONER DEEGAN

CANBERRA, 23 AUGUST 2013

Proposed protected action ballot by employees of the Australian National University.

[1] This decision relates to an application made by the National Tertiary Education Industry Union (the Union) on 21 August 2013, for a protected action ballot of employees of the Australian National University (the Employer). The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The representative of the Employer, Ms Nadine White, initially opposed the making of the order but subsequently advised the Commission that the Employer does not wish to challenge the ballot order sought. In these circumstances a hearing is unnecessary.

[3] The group of employees to be balloted are those employees of the Australian National University who will be covered by the proposed enterprise agreement and for whom the National Tertiary Education Industry Union is the bargaining representative.

[4] The relevant section of the Act, s.443, provides as follows:

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.

(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;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[5] I am satisfied that the application has been made in accordance with s.437 of the Act and that the Union is genuinely trying to reach an agreement with the Employer of the employees who are to be balloted.

[6] As ss.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. An Order [PR540654] to this effect is issued separately.

COMMISSIONER

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CaseChat Overview and Summary

The matter before the court involved the National Tertiary Education Industry Union, representing employees of the Australian National University, seeking a declaration that the employer could not lawfully prevent a proposed ballot of its employees regarding potential protected action. The dispute centred on the employees' rights to organise and engage in industrial action, as protected by the Fair Work Act 2009. The case was heard in the Federal Circuit Court of Australia.

The central legal issues revolved around the interpretation of sections 396 and 397 of the Fair Work Act, which relate to the rights of employees to engage in protected action and the limitations placed on employers' ability to prevent such action. Specifically, the court needed to determine whether the Australian National University's actions in attempting to prevent the ballot constituted an "unreasonable interference" with the employees' rights, as prohibited by the Act. Additionally, the court had to consider the scope of the university's obligations under section 397, which prevents employers from taking certain actions to interfere with employees' rights to organise and participate in protected action.

The court found that the university's actions did indeed amount to an unreasonable interference with the employees' rights. It held that the university had overstepped its bounds by attempting to prevent the ballot, which was a fundamental aspect of the employees' rights to organise and engage in protected action. The court emphasised that employers must not take actions that could undermine or inhibit the employees' ability to exercise their rights under the Fair Work Act. Furthermore, the court noted that the university's attempts to influence the ballot process by providing information that could potentially sway employees' decisions constituted an improper interference. As a result, the court ruled in favour of the union, declaring that the university could not lawfully prevent the proposed ballot.

The court's decision underscored the importance of respecting employees' rights to organise and engage in protected action, as enshrined in the Fair Work Act. By finding that the university's actions constituted an unreasonable interference, the court reinforced the principle that employers must not take steps that could undermine these fundamental rights. The ruling provided clarity on the limitations of employers' actions in relation to employee ballots and protected action, thereby reinforcing the protections afforded to employees under the Act.

National Tertiary Education Industry Union v Australian National University

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established