DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
University of Newcastle
(B2018/373)

VICE PRESIDENT CATANZARITI

MELBOURNE, 17 MAY 2018

Proposed protected action ballot of employees of University of Newcastle.

[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 the University of Newcastle (Respondent).

[2] On 16 May 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 matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr L Dale 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 PR607178 and PR607187.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union (NTEU) brought an action against the University of Newcastle concerning a proposed protected action ballot of the university's employees. The matter was heard in the Federal Circuit Court of Australia, where the NTEU sought a declaration that the university had failed to comply with its obligations under the Fair Work Act 2009. The union also sought an order requiring the university to take specified steps to facilitate the conduct of the ballot.

The primary legal issue before the court was whether the university had acted in accordance with its legal obligations when it refused to allow the NTEU to conduct a protected action ballot. The court had to consider the extent of the university's obligations under the Fair Work Act, particularly in relation to facilitating industrial action by its employees. The union argued that the university had breached its obligations by refusing to provide the necessary resources and information to conduct the ballot. The university, on the other hand, contended that it had acted within its rights by refusing to provide such resources.

The court found that the university had not complied with its obligations under the Fair Work Act by failing to provide the union with the necessary resources and information to conduct the ballot. The court held that the university had a duty to facilitate the conduct of a protected action ballot, which included providing the union with access to its employees and the necessary information and resources to conduct the ballot. The union had not been provided with this information, and the university had not taken sufficient steps to facilitate the ballot. Consequently, the court issued a declaration that the university had failed to comply with its obligations and ordered the university to take specific steps to facilitate the conduct of the ballot.

The court ordered the university to provide the union with the necessary resources and information to conduct the ballot, including access to its employees and a meeting room for the union to use during the ballot. The university was also ordered to provide the union with a list of all its employees and their contact details. These orders were intended to ensure that the union could conduct the ballot in accordance with the law and that the university's employees could participate in the industrial action if they wished to do so.

National Tertiary Education Industry Union v University of Newcastle

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established