INDUSTRIAL ACTION – order against industrial action – s.418 Fair Work Act 2009 – application seeking orders be issued against respondent pursuant to s.418 of the FW Act – ongoing disputes between respondent and applicant before Commission regarding workload allocation matters for applicant’s academic staff – frameworks for allocation of work to academic staff developed through process set out in clause 45 of Victoria University Enterprise Agreement 2013 (Agreement) – most recent application made by respondent to Commission in January primarily related to questions of appropriate allocation of time for the work of course and unit coordinators in various colleges of University – applicant raised jurisdictional objection that respondent had not met jurisdictional requirements of dispute settlement procedure – Commission recommended meetings between parties before making finding – respondent subsequently sent an email to academic union members which included ‘advice to staff’ – applicant submitted some aspects of email constituted directions to respondent’s members to work in particular manner and therefore constituted organising of industrial action – Commission satisfied that no industrial action occurred – necessary to determine if industrial action threatened, impending or probable – to extent that certain paragraphs of email purported to be a direction to union members to not do work that is properly within their skills and experience and is work generally required of them, was industrial action in that it was a restriction on the performance of work or a refusal to perform work – some words in email indicated intent for there to be a restriction on performance of work – considered context within which advice given – found provisions of clause 59.4 of Agreement continued to apply as internal meetings directed at resolving the dispute have continued and jurisdictional objection maintained – AGL Loy Yang applied – Commission satisfied action directed by respondent email did no more than seek to maintain the status quo as specified in clause 59.4 of Agreement – as such, action could not be industrial action – to grant the orders sought in circumstances where specific provisions of dispute settlement procedure apply would be outcome contrary to operation of Agreement – application dismissed. Interim order issued on 24 February 2017 will be set aside. Victoria University v National Tertiary Education Industry Union
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