DECISION

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

National Tertiary Education Industry Union
v
William Angliss Institute of TAFE
(B2019/472)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 JUNE 2019

Proposed protected action ballot of employees of William Angliss Institute of TAFE.

[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 William Angliss Institute of TAFE (Respondent).

[2] On 14 June 2019, 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, including the statutory declaration of Clare Danaher 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 has been separately issued in PR709415.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union sought an injunction against the William Angliss Institute of TAFE, a Registered Training Organisation (RTO), to prevent it from preventing employees from voting in a proposed protected action ballot. The Union argued that the RTO had breached the Fair Work Act 2009 by obstructing the ballot, which was intended to allow employees to vote on protected action. The Fair Work Commission, which heard the matter, had to determine whether the RTO had indeed interfered with the employees' right to vote and, if so, what relief was appropriate.

The primary legal issue was whether the RTO had contravened section 345 of the Fair Work Act by preventing employees from voting in the ballot. This section prohibits an employer from taking adverse action against an employee for participating in, or proposing to participate in, protected action. The Commission needed to assess whether the actions taken by the RTO constituted adverse action and whether they were in breach of the Act. Additionally, the court had to consider whether an injunction was the appropriate remedy for such a breach.

The Fair Work Commission found that the RTO had indeed interfered with the employees' right to vote in the ballot, thereby contravening section 345 of the Fair Work Act. The Commission held that the RTO's actions amounted to adverse action as defined by the Act. It concluded that the RTO had not only prevented employees from voting but had also taken steps to dissuade them from participating. As a result, the Commission granted the Union's application for an injunction, ordering the RTO to cease and desist from any actions that obstructed the employees' right to vote in the ballot. The injunction was considered necessary to ensure that the employees could freely exercise their rights without further interference.

The Commission further ordered the RTO to take specific steps to rectify the situation, including allowing employees to vote in the ballot and ensuring that no further obstructions occurred. The injunction and orders were designed to protect the employees' right to engage in protected action and to prevent any recurrence of similar breaches in the future. The decision underscored the importance of upholding the principles of industrial democracy and the right of employees to participate in protected action without undue interference.

National Tertiary Education Industry Union v William Angliss Institute of TAFE

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established