United Workers' Union v Commissioner for Public Employment T/A Northern Territory Correctional Service

[2022] FWC 537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Commissioner for Public Employment T/A Northern Territory Correctional Service

(B2022/181)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 MARCH 2022

Proposed protected action ballot of employees of the Northern Territory Correctional Service

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 Correctional Service (Respondent).

On 7 March 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Erina Early of the Applicant declared on 7 March 2022, 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 PR739199.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the United Workers’ Union and the Commissioner for Public Employment, trading as the Northern Territory Correctional Service. The Union sought a protected action ballot order for certain employees of the Correctional Service under section 437 of the Fair Work Act 2009. The application was made without opposition from the Correctional Service. The Vice President of the Fair Work Commission, Catanzariti, determined the matter on the basis of the submitted documentation, without holding a hearing. The documentation included a statutory declaration from Erina Early of the Union, affirming the Union's efforts to reach an agreement with the Correctional Service.

The legal issues before the court were whether there existed a notification period for the proposed agreement and if the Union had fulfilled the requirements outlined in section 443(1) of the Act. Specifically, the court needed to ascertain if the Union genuinely attempted to negotiate with the Correctional Service and if it had provided adequate notice of the proposed industrial action. The decision hinged on whether the Union's actions met the statutory criteria for a protected action ballot.

The court examined the statutory declaration and the documentation provided, concluding that the Union had indeed been genuinely trying to reach an agreement with the Correctional Service and had satisfied the notification time requirement. The court found that the Union had fulfilled the conditions set out in section 443(1) of the Act. Consequently, the Vice President issued an order permitting the Union to proceed with the protected action ballot. This decision underscores the importance of the Union's genuine bargaining efforts and compliance with statutory notification periods in the context of protected action ballots.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established