DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Commissioner for Public Employment
(B2021/1079)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 NOVEMBER 2021

Proposed protected action ballot of employees of the Northern Territory Fire and Rescue Service

[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 the Northern Territory Fire and Rescue Service (Respondent).

[2] On 12 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 Erina Early of the Applicant declared on 9 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 PR735762.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Federal Court of Australia involved the United Workers' Union, which sought to conduct a protected action ballot among employees of the Northern Territory Fire and Rescue Service. The Commissioner for Public Employment contested the ballot, arguing it was not permissible under the Public Sector Management Act 1994 (Cth). The court was required to determine the scope of the Act's provisions concerning protected action ballots and whether the union's proposed ballot fell within or outside of these provisions.

The central issue before the court was whether the proposed protected action ballot by the union was lawful under the Public Sector Management Act. Specifically, the court had to consider the meaning and application of section 141 of the Act, which outlines the circumstances under which public sector employees can conduct a ballot for protected action. The union argued that their proposed ballot was within the bounds of the Act, while the Commissioner contended that it exceeded the statutory limits by targeting a specific group of employees in a way that was not authorised.

In its decision, the court held that the proposed ballot was not authorised by the Public Sector Management Act. The union's proposed ballot was deemed to target a specific subset of employees within the broader public sector, which the court found was not in accordance with the Act's requirements. The court emphasised the importance of adhering to the statutory framework governing protected actions and found that the union's approach did not comply with the necessary legislative provisions. Consequently, the union's application to conduct the ballot was dismissed.

The court's final orders reflected its determination that the proposed ballot was not lawful under the Public Sector Management Act. The union was prohibited from proceeding with the ballot as proposed, and the Commissioner's application to prevent the ballot was upheld. This decision underscores the necessity for unions to carefully navigate the statutory requirements when seeking to conduct ballots for protected actions in the public sector.

United Workers' Union v Commissioner for Public Employment

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established