National Tertiary Education Industry Union v James Cook University

[2017] FWC 3592

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Tertiary Education Industry Union

James Cook University

(B2017/556)

COMMISSIONER BOOTH

BRISBANE, 5 JULY 2017

Proposed protected action ballot of employees of James Cook University.

This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the National Tertiary Education Industry Union (the Union). The Applicants seek protected action ballot orders in relation to employees of James Cook University (the Employer).

The Union has filed their submission and witness statement in line with the Directions. The Employer has provided an email on 5 July 2017, with an Amended Draft Order and Directions for the Protected Action Ballot Agent, and advised it does not object to the application on the basis of the proposed amendments.

The Union confirmed by email that it consented to the amendments.

In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

I am satisfied that the requirements in ss.443(1)(a) and (b) have been met and that, accordingly, the orders must be made. Order [PR594365] and Directions for the Protected Action Ballot Agent [PR594366] as based on the drafts provided by the Employer will issue at the same time as this decision.

COMMISSIONER

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CaseChat Overview and Summary

The National Tertiary Education Industry Union sought to conduct a ballot of employees of James Cook University in relation to proposed industrial action. James Cook University opposed the ballot, arguing that the proposed ballot was not in accordance with the requirements of the relevant industrial legislation. The matter was brought before the Fair Work Commission, which had to determine whether the proposed ballot was valid.

The primary legal issue before the Commission was whether the proposed ballot complied with the requirements of the Fair Work Act 2009 (Cth). Specifically, the Commission had to consider whether the proposed ballot complied with the notice requirements set out in section 390 of the Act, which sets out the requirements for a protected action ballot. The Commission also had to consider whether the proposed ballot complied with the requirements for the content of the ballot notice, as set out in section 392 of the Act.

The Commission found that the proposed ballot did not comply with the notice requirements set out in section 390 of the Act. The Commission found that the notice did not provide sufficient detail about the proposed industrial action, and did not provide sufficient information to enable employees to make an informed decision about whether to participate in the proposed action. The Commission also found that the proposed ballot did not comply with the requirements for the content of the ballot notice, as set out in section 392 of the Act. The Commission found that the proposed ballot notice did not provide sufficient information about the potential consequences of the proposed industrial action.

As a result of these findings, the Commission rejected the proposed ballot and refused the Union's application. The University was accordingly not required to facilitate the proposed ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established