National Tertiary Education Industry Union v University of Sydney

The National Tertiary Education Industry Union sought a declaration from the Fair Work Commission that the University of Sydney had engaged in unlawful conduct by attempting to prohibit employees from participating in a protected action ballot. The case was heard in the Federal Court of Australia. The dispute arose from a situation where the university had attempted to restrict access to campus by employees who intended to participate in a ballot concerning industrial action, leading to a legal challenge by the Union on the basis that the university's actions contravened provisions of the Fair Work Act 2009.

The legal issues before the court were whether the university's actions constituted unlawful conduct under the Fair Work Act and whether the university had breached any provisions of the Act in attempting to prevent the employees from accessing the campus to participate in the ballot. The court was required to determine the scope and application of the protections afforded to employees under the Act in relation to industrial action and the extent of the university's obligations to facilitate such actions.

The court found that the university had indeed engaged in unlawful conduct by attempting to prevent employees from accessing the campus to participate in the protected action ballot. The university's actions were held to be in breach of section 389 of the Fair Work Act, which prohibits an employer from taking adverse action against an employee for participating in, or assisting others to participate in, protected industrial action. The court emphasised the importance of upholding the rights of employees to engage in protected industrial action and the corresponding obligations of employers to facilitate such actions within the bounds of the law. The decision underscored the principle that employers must not interfere with employees' right to organise and take collective action.

The court made a declaration that the University of Sydney had engaged in unlawful conduct and ordered the university to take specific steps to rectify its actions, including ensuring that employees had unhindered access to the campus to participate in the protected action ballot. The court also ordered the university to provide a public apology and to take measures to prevent similar breaches in the future.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established