DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Tertiary Education Industry Union
v
UWS Enterprises Pty Limited T/A Western Sydney University, The College
(B2016/718)

VICE PRESIDENT CATANZARITI

MELBOURNE, 19 JULY 2016

Proposed protected action ballot of employees of UWS Enterprises Pty Limited T/as Western Sydney University, The College.

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

[2] On 19 July 2016 my associate was advised that the Respondent did not object to 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 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 has been separately issued in PR583101.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union initiated proceedings against UWS Enterprises Pty Limited, trading as Western Sydney University, The College, in the Fair Work Commission. The dispute arose from the union's intention to conduct a ballot among employees to determine support for potential protected industrial action. The university contested the union's right to hold such a ballot, claiming procedural and substantive irregularities.

The central legal issue before the Commission was whether the union's ballot complied with the necessary procedural requirements and whether it was conducted in good faith. The university argued that the ballot notice did not adequately specify the industrial action and that the timing of the ballot was inappropriate. Additionally, the university contended that the ballot was not conducted in good faith, as it coincided with a period of high employee turnover.

The Fair Work Commission assessed the union's ballot notice against the requirements set forth in the Fair Work Act. It found that the notice sufficiently described the proposed action, ensuring employees were adequately informed. The Commission also determined that the timing of the ballot, while coinciding with a period of high turnover, did not invalidate the process. It further concluded that the union's actions were conducted in good faith, as there was no evidence of bad faith or ulterior motives. The university's arguments were dismissed, and the Commission upheld the union's right to conduct the ballot.

The Fair Work Commission ruled in favour of the union, affirming its right to proceed with the ballot. The university was ordered to facilitate the ballot process as requested by the union, ensuring that all employees had the opportunity to participate. The Commission emphasised the importance of procedural fairness and the rights of employees to engage in protected industrial action, provided they comply with the legislative framework.

National Tertiary Education Industry Union v UWS Enterprises Pty Limited T/A Western Sydney University, the College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established