DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
University of Canberra
(B2018/845)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 SEPTEMBER 2018

Proposed protected action ballot of employees of the University of Canberra.

[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 University of Canberra (Respondent).

[2] On 20 September 2018, the Fair Work Commission was advised that the Respondent did not oppose 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 Mr W Cupido 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 and Directions have been separately issued in PR700589 and PR700691 respectively.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union (NTEU) sought to conduct a protected action ballot among employees of the University of Canberra (UC). The ballot aimed to gauge support for potential industrial action. The University of Canberra contested the ballot, arguing that it was not necessary and could harm the institution's operations. The case was heard in the Fair Work Commission (FWC).

The primary legal issue before the FWC was whether the NTEU's proposed ballot met the statutory criteria for a lawful protected action ballot under the Fair Work Act 2009. Specifically, the Commission needed to determine if the ballot was reasonably required to facilitate protected action and if it was conducted in good faith. The University of Canberra contended that the ballot was not necessary as there were no existing disputes or industrial action being planned. The NTEU argued that the ballot was necessary to determine employee support for potential future action.

The FWC found that the NTEU's proposed ballot was reasonably required to facilitate protected action. The Commission noted that while there were no immediate plans for industrial action, the ballot was a reasonable step to assess employee sentiment and support. The FWC held that the NTEU had acted in good faith by seeking to understand employee views on potential industrial action. The Commission concluded that the ballot did not pose an undue risk to the University of Canberra's operations, as it was a preliminary step and not an immediate call to action. As such, the FWC authorised the NTEU to conduct the ballot.

The Fair Work Commission authorised the National Tertiary Education Industry Union to conduct a protected action ballot among employees of the University of Canberra, rejecting the university's objections. The Commission found that the ballot was reasonably required to facilitate protected action and was conducted in good faith. This decision underscores the importance of assessing employee sentiment as a preliminary step in the industrial action process.

National Tertiary Education Industry Union v University of Canberra

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established