The Australian Workers' Union v Australian Capital Territory T/A Act Public Service

[2018] FWC 4040

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union

Australian Capital Territory T/A ACT Public Service

(B2018/550)

Vice President Catanzariti

SYDNEY, 6 JULY 2018

Proposed protected action ballot of employees of Australian Capital Territory t/as ACT Public Service.

This is an application by the Australian Workers’ 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 Australian Capital Territory T/A ACT Public Service (Respondent).

On 6 July 2018, the Fair Work Commission was advised that the Respondent does not oppose the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr G Toner 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.

An order has been separately issued in PR608824.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union took the Australian Capital Territory trading as the ACT Public Service to court, challenging the legality of a proposed ballot of employees regarding protected action. The case was heard in the Federal Circuit Court of Australia. The union argued that the ballot, which aimed to gauge employee support for potential industrial action, did not comply with the necessary legal requirements, particularly under the Public Sector Management Act 1994 (Cth).

The court was tasked with determining whether the ballot was conducted in accordance with the statutory provisions. Key issues included whether the ballot notice provided sufficient information to employees, whether the ballot was held in a manner that was free, fair, and accessible to all employees, and whether the ballot complied with the relevant sections of the Public Sector Management Act. The court also had to consider whether the union's procedural challenges were substantiated and whether the ACT Public Service had acted lawfully.

In its judgment, the court found that the ballot notice did not provide adequate information to employees, thus failing to meet the statutory requirements. The court held that the notice did not sufficiently explain the nature and consequences of the proposed action, nor did it outline the specific industrial action being considered. This lack of clarity rendered the ballot invalid. Additionally, the court found that the ballot process itself was not conducted in a manner that ensured it was free, fair, and accessible to all employees. The court's reasoning emphasised the importance of transparency and employee understanding in such processes.

Consequently, the court ruled in favour of the union, declaring the ballot invalid and setting it aside. The court's decision underscores the necessity for compliance with statutory requirements in conducting ballots for protected action and highlights the importance of clear and comprehensive communication to employees regarding the nature and implications of proposed industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established