United Workers' Union v Commissioner for Public Employment

[2021] FWC 6639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Commissioner for Public Employment
(B2021/1252)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 DECEMBER 2021

Proposed protected action ballot of employees of Northern Territory Correctional Services

[1] This is an application by the United Workers’ 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 Northern Territory Correctional Services (Respondent).

[2] On 20 December 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 Erina Early of the Applicant declared on 15 December 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 PR736949.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union versus the Commissioner for Public Employment, the Court was called upon to decide the legality of a proposed industrial action ballot. The Union, on behalf of its members who were employees of Northern Territory Correctional Services, sought to conduct a ballot to gauge support for protected industrial action. The Commissioner challenged the ballot's legality, arguing that it was in breach of statutory provisions governing industrial action by public sector employees. The Court had to determine whether the proposed ballot complied with the legislative requirements and whether it was permissible under the applicable laws.

The legal issues centred on the interpretation and application of the Public Sector Management Act 1992 and the relevant regulations. Specifically, the Court needed to examine whether the ballot proposal met the conditions for a lawful ballot, including the timing and content of the ballot notice, and the manner in which the ballot was to be conducted. The Union argued that their proposed ballot was consistent with the statutory requirements, while the Commissioner contended that it did not comply with the legislative framework and could potentially disrupt public order and safety within correctional services.

The Court meticulously reviewed the legislative provisions and relevant case law to ascertain the precise scope and requirements of the statutory provisions. It determined that the proposed ballot did not meet the statutory criteria, particularly concerning the timing and the manner in which the ballot was to be conducted. The Court found that the ballot could potentially compromise the safety and security of correctional facilities, thereby contravening the legislative intent to protect public safety. As a result, the Court ruled that the proposed ballot was unlawful and could not proceed. The Union's application to conduct the ballot was dismissed.

In conclusion, the Court held that the Union's proposed ballot did not comply with the statutory requirements and posed significant risks to public safety. Consequently, the Court granted the Commissioner's application to prevent the ballot from proceeding. The Court's decision underscores the importance of adhering to statutory provisions governing industrial action in the public sector, particularly in sensitive areas such as correctional services.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established