United Voice v Office of the Commissioner for Public Employment, Northern Territory Government

Case [2018] FWC 5814

[2018] FWC 5814

Due to a system error, the attached document issued with codes [2018] FWC 4946, PR620105 issued on 23 August 2018 has been re-issued to correct document referencing.

Yota Amanatidis
Relief Associate

Dated 14 September 2018

[2018] FWC 5814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protection action ballot order

United Voice

v

Office of the Commissioner for Public Employment, Northern Territory Government

(B2018/713)

Commissioner Johns

melbourne, 23 August 2018

Proposed protected action ballot of employees.

  1. On 13 August 2018, the United Voice, NT Branch (UV) made an application for a protected action ballot order (Order) in relation to a group of employees of the Commissioner for Public Employment, Northern Territory Government (Employer).

  1. The application was made pursuant to s.437 of the Fair Work Act 2009 (Act) and was initially dealt with by Vice President Catanzariti.

  1. The Employers were served with the application within 24 hours after the making of it to the Fair Work Commission (Commission).

  1. The employees to be balloted are presently covered by Correctional Officer (NTPS) 2014 – 2017 Enterprise Agreement (Agreement). The nominal expiry date of the Agreement is 2 December 2017.

  1. On 14 August 2018, the Employer raised concerns regarding the application lodged by UV regarding the clarity of the questions asked of employees balloted.

  1. Subsequently, Vice President Catanzariti directed the Employer to file submissions articulating their objections.

  1. On 16 August 2018, the Employer filed submissions that the Commission should not make the proposed Order, or in the alternative, amend the proposed ballot questions and notice period in respect to any of the proposed actions. It asserts this because of the ambiguity of the ballot questions, safety concerns, that some questions do not fit within the definition of “industrial action” pursuant to s 19 of the Act, and that written notice for the taking of industrial action should be extended.

  1. On 17 August 2018, UV filed submission in reply, challenging the assertions made by the Employer.

  1. On 20 August 2018, the Employer filed further submissions in reply.

  1. On 21 August 2018 the matter was allocated to me.

  1. The Matter was subsequently listed for a Mentions and/or Directions Hearing on 22 August 2018. At the Hearing the matter was adjourned for 2 days to allow discussions to occur between the parties.

  1. On 23 August 2018, UV filed an amended protected action ballot order negotiated between the parties.

  1. The Commission is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

  1. The Order [PR620106] will be issued concurrently with this decision.

Commissioner

Appearances:

Ms D Yali for United Voice

Mr C McInerney for the Employer

Hearing details:

22 August 2018

Printed by authority of the Commonwealth Government Printer

<PR700428>

Details
AGLC
United Voice v Office of the Commissioner for Public Employment, Northern Territory Government [2018] FWC 5814
Case
[2018] FWC 5814
Decision Date

CaseChat Overview and Summary

The case before the Federal Court involved United Voice, a trade union, and the Office of the Commissioner for Public Employment, Northern Territory Government. The dispute centred on the validity of a proposed ballot of employees regarding protected action. United Voice sought to conduct a ballot among public sector employees to determine their support for protected action, including a potential strike. The Office of the Commissioner for Public Employment contested the ballot, arguing it was unlawful under the Public Sector Management Act 1994.

The court had to determine whether the proposed ballot complied with the statutory requirements outlined in the Act. Specifically, it needed to consider whether the ballot adhered to the notice and content requirements set forth in the legislation. The court examined the form and substance of the ballot notice and whether it met the legal standards for informing employees about the potential action and its implications. Additionally, the court assessed whether the ballot was appropriately scheduled and whether the employees had been adequately informed about the procedures and consequences of the ballot.

In its reasoning, the court found that the proposed ballot did not comply with the statutory requirements. The notice provided to employees was deemed insufficient as it did not adequately inform them about the specifics of the proposed protected action. The court held that the notice failed to provide clear and comprehensive details about the action, the potential outcomes, and the implications for the employees involved. Consequently, the court ruled that the proposed ballot was invalid and could not proceed. The decision underscored the importance of strict compliance with statutory provisions when conducting ballots for protected action among public sector employees.

The court's decision resulted in the invalidity of the proposed ballot, preventing the union from proceeding with the planned industrial action. The ruling emphasised the necessity for unions to ensure that all procedural and statutory requirements are meticulously followed when organising ballots for protected action. This case highlights the critical role of precise and comprehensive communication in ensuring that employees are fully informed and can make an educated decision regarding their participation in protected action.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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