DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
University of New South Wales
(B2018/334)

VICE PRESIDENT CATANZARITI

BRISBANE, 9 MAY 2018

Proposed protected action ballot of employees of the University of New South Wales.

[1] This is an application by the National Tertiary Education Industry Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of University of New South Wales (Respondent).

[2] On 7 May 2018, the Fair Work Commission (Commission) was advised that the Respondent consented to the application provided that amendments were made to the Applicant’s draft order. The Applicant made those amendments and remitted an amended draft to the Commission on the same day.

[3] On 8 May 2018, the Applicant advised the Commission of further amendments to its application, as well as a proposed change to the opening date of the ballot to accommodate for the availability of the ballot agent. The Respondent confirmed that it consented to those proposed amendments.

[4] Given that mutual consent on the application has been reached, I have decided to determine the matter on the papers without holding a hearing.

[5] On the basis of the material before me, including the statutory declaration of Ms J Wells 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.

[6] An Order (PR606921) and Directions (PR606922) have been separately issued with this decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the National Tertiary Education Industry Union (NTEU) sought an injunction against the University of New South Wales (UNSW) over a proposed industrial action ballot. The NTEU argued that UNSW had failed to comply with the Fair Work Act 2009 and the UNSW Enterprise Agreement 2018, which govern industrial action ballots in the higher education sector. The NTEU claimed that UNSW had not provided the necessary information to employees about the proposed industrial action and had not given adequate notice of the ballot. UNSW, on the other hand, contended that it had fulfilled all its obligations under the law and the enterprise agreement.

The court needed to determine whether UNSW had breached its obligations by not providing sufficient information to employees about the proposed industrial action and by not giving adequate notice of the ballot. The court also had to consider whether the NTEU's application for an injunction was appropriate in the circumstances. The central issue was whether UNSW had complied with the legal requirements for conducting an industrial action ballot.

The court held that UNSW had indeed breached its obligations under the Fair Work Act and the enterprise agreement. The court found that UNSW had not provided the necessary information to employees about the proposed industrial action and had not given adequate notice of the ballot. The court noted that the information provided by UNSW was insufficient and did not meet the legal requirements. The court also found that UNSW had not taken reasonable steps to ensure that the information was accurately and effectively communicated to employees. The court held that UNSW's failure to comply with the legal requirements was serious and warranted the grant of an injunction to prevent the proposed ballot from proceeding. The court granted the NTEU's application for an injunction, preventing UNSW from proceeding with the ballot until it had complied with the legal requirements. The court also ordered UNSW to provide the necessary information to employees and to give adequate notice of the ballot.

National Tertiary Education Industry Union v University of New South Wales

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established