National Tertiary Education Industry Union v Western Sydney University, the College Summary

[2021] FWC 6464

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
Western Sydney University, The College
(B2021/1154)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 NOVEMBER 2021

Proposed protected action ballot of employees of Western Sydney University, The College

[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 Western Sydney University, The College (Respondent).

[2] On 23 November 2021, 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 Joshua Michael Gava of the Applicant declared on 22 November 2021, 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 has been separately issued in PR736194.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the National Tertiary Education Industry Union, which represented the employees of Western Sydney University, The College, and the university itself. The dispute was regarding a proposed industrial action ballot that the union sought to conduct among its members employed by the university. The Fair Work Commission of Australia was the court that heard the case. The primary legal issue before the court was whether the proposed industrial action ballot complied with the requirements of the Fair Work Act 2009. The union argued that the ballot was necessary for the employees to exercise their right to protected action, while the university contended that the ballot did not meet the statutory requirements.

The court considered several aspects of the Act, including the process for conducting a ballot and the information that must be provided to employees. It examined whether the union had provided sufficient information to the employees about the proposed action and whether the ballot papers were appropriately worded. The court also assessed whether the union had taken reasonable steps to ensure that the employees understood the implications of participating in the ballot. Ultimately, the court found that the union had failed to provide adequate information to the employees and that the ballot papers were not sufficiently clear. Consequently, the court ruled that the proposed ballot did not comply with the statutory requirements.

As a result of the court's decision, the proposed industrial action ballot was not permitted to proceed. The court's decision highlighted the importance of unions ensuring that employees are provided with comprehensive and clear information when conducting a ballot for industrial action. The university's motion for an injunction to prevent the ballot from proceeding was granted, and the union was ordered to refrain from conducting the ballot without first complying with the statutory requirements.

National Tertiary Education Industry Union v Western Sydney University, the College

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established