DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Tertiary Education Industry Union
v
Swinburne Student Amenities Association Limited
(B2019/1392)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 DECEMBER 2019

Proposed protected action ballot of employees of Swinburne Student Amenities Association Limited.

[1] National Tertiary Education Industry 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 Swinburne Student Amenities Association Limited (Respondent).

[2] On 16 December 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Ms C Danaher 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.

[5] An order has been separately issued in PR715338.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union initiated proceedings against the Swinburne Student Amenities Association Limited to challenge a proposed protected action ballot concerning the employees of the latter. The dispute was heard in the Fair Work Commission, which has jurisdiction over employment matters under the Fair Work Act 2009. The Union argued that the ballot, which sought employee approval for industrial action, was defective and thus invalid. It claimed that the ballot did not meet the statutory requirements for a valid ballot, specifically concerning the notice and information provided to the employees.

The central legal issues before the Commission were whether the ballot notice and information provided to the employees were adequate and whether the ballot complied with the statutory requirements. The Union contended that the notice and information provided were insufficient as they did not fully explain the potential consequences of the industrial action and did not adequately inform the employees of their rights and obligations under the Act. The Association defended the ballot, asserting that it had fulfilled all the necessary legal requirements.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, determined that the ballot notice and information were inadequate. The Commission found that the notice did not sufficiently detail the potential impact of the proposed industrial action on the employees and the broader community, and that the information provided to the employees was insufficient to enable them to make an informed decision. Consequently, the Commission ruled that the ballot was invalid. The Commission also noted that the Association had failed to provide the employees with all necessary information to allow them to exercise their rights effectively. The outcome of the case was that the proposed ballot was declared invalid, and the employees' right to take protected action was consequently affected.

National Tertiary Education Industry Union v Swinburne Student Amenities Association Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established