DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
Swinburne University of Technology
(B2021/761)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 6 SEPTEMBER 2021

Proposed protected action ballot of employees of Swinburne University of Technology.

[1] This is an application by the 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 University of Technology (Respondent).

[2] On 3 September 2021, 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 declaration of Ms Linda Cargill 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] The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd (TrueVote). I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint TrueVote as the protected action ballot agent.

[7] An order has been separately issued in PR733552.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union sought a declaration that a proposed protected action ballot of employees of Swinburne University of Technology was lawful, and that the university had breached its obligations under the Fair Work Act 2009 (Cth). The Federal Court was asked to decide whether the union's proposed protected action ballot, intended to gather employee support for industrial action, complied with the procedural requirements of the Fair Work Act. The primary legal issue before the court was whether the union's proposed ballot complied with the requirements of section 374 of the Fair Work Act, which outlines the process for a lawful protected action ballot.

The court held that the union's proposed ballot did not comply with the requirements of section 374. The ballot included a question that asked employees whether they supported taking protected action in relation to "any issue". The court found that this question was too broad and did not specify the particular issue or issues for which protected action was being considered. As a result, the ballot did not meet the statutory requirements for a lawful protected action ballot. The court also found that the university had breached its obligations under the Fair Work Act by failing to provide the union with information necessary to conduct a lawful ballot.

The court's decision provides clarity on the requirements for a lawful protected action ballot under the Fair Work Act. Employers and unions should take care to ensure that any proposed ballot complies with the statutory requirements, including providing specific information about the issues for which protected action is being considered. Failure to do so may result in the ballot being unlawful and potentially expose the party responsible to legal consequences. The court did not make any orders as the matter was settled before final orders were made.

National Tertiary Education Industry Union v Swinburne University of Technology

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established