Application by National Tertiary Education Industry Union [2013] FWC 1915 (28 March 2013)

[2013] FWC 1915

Fair Work Act 2009

s.437 - Protected action

Proposed protected action ballot by employees of the University of Melbourne.

[1] The following decision, now edited, was issued during proceedings conducted on 27 March 2013.

[2] This is an application for a protected action ballot order by members of the National Tertiary Education Industry Union ("the NTEU") employed by the University of Melbourne. The application is made pursuant to s.437 of the Fair Work Act 2009 ("the Act").

[3] The applicant seeks to ballot employees of the University of Melbourne who are members of the NTEU and who would be subject to the proposed enterprise agreement.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When FWA must make a protected action ballot order

(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this connection, the University of Melbourne neither consents nor opposes the application but simply seeks to draw to my attention a number of factors which may go to the exercise of jurisdiction.

[7] Those factors include the fact that the NTEU did not commence negotiations as envisaged by the previous enterprise agreement; secondly, that many of the matters before the parties are still at early negotiation stage; and thirdly, that at no stage have there been negotiations which have reached a point of impasse or where the parties are walking away.

[8] In response to that, the NTEU submitted that, notwithstanding the fact that there had been a delay in starting the negotiations, negotiations had been continuing over a long period of time and that the differences between the parties were clear. The NTEU also submitted that it was genuinely trying to reach agreement and that there were a number of matters that are in the demands by the university for the first time.

[9] I have considered carefully the jurisdiction of the matter, given the submissions of the University of Melbourne. I simply observe that the legislation does not require the Commission to form a view that an impasse in negotiations has been reached before it is required to order a protected action ballot.

[10] I have decided that section 443(1)(a) and (b) have been complied with and I will make a protected action ballot order as sought by the NTEU. Given the public holidays that are about to arrive, I have also decided that the most practical way of dealing with the order is to make the order operative from Monday, 8 April 2013.

S. Roberts with T. Clark for the National Tertiary Education Industry Union.

M. O'Sullivan on behalf of the University of Melbourne.

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