National Tertiary Education Industry Union v Centre for Adult Education

[2013] FWC 5182

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
Centre for Adult Education
(B2013/191)

COMMISSIONER BISSETT

MELBOURNE, 30 JULY 2013

Proposed protected action ballot by employees of the Centre for Adult Education.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the National Tertiary Education Industry Union (NTEU) for a protected action ballot order in relation to certain employees of Centre for Adult Education (the Respondent). The application was made on 25 July 2013.

[2] Upon being contacted by my associate the Respondent advised that it would 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 NTEU has provided a signed statement addressing those matters in s.443(1) of the Act.

[5] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[6] 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 NTEU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union sought a declaration that proposed protected action by employees of the Centre for Adult Education would be lawful and a corresponding injunction against the Centre from interfering with the employees’ ability to conduct the protected action. The Centre for Adult Education, a private educational institution, opposed the application. The Federal Court was required to determine whether the employees' proposed protected action would be lawful and whether the Centre was entitled to an injunction to prevent the employees from taking the protected action.

The court examined the definition of protected action under the Fair Work Act 2009 and whether the proposed action met the criteria. It considered the nature of the dispute between the parties, the role of the Centre as an employer, and the rights of the employees to engage in protected action. The court determined that the proposed action by the employees was protected action as it related to a workplace dispute and involved the employees taking collective action in relation to their employment. The court also found that the Centre was not entitled to an injunction to prevent the employees from taking the protected action, as the Centre's conduct did not amount to an interference with the employees' ability to engage in the protected action.

The court made a declaration that the proposed protected action by the employees would be lawful and granted an injunction against the Centre from interfering with the employees’ ability to conduct the protected action. The court held that the employees had the right to engage in protected action in relation to their employment, and the Centre was not entitled to prevent them from doing so. The decision underscores the importance of protecting the rights of employees to engage in collective action and the limitations on the actions of employers in response to such action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established