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[2018] FWC 3020
Fair Work Commission
2018-05-29
Original judgment source is linked above.
[2018] FWC 3020 [Note: An appeal pursuant to s.604 (C2018/3323) was lodged against this decision.]
s.437 - Application for a protected action ballot order
Proposed protected action ballot of employees of Charles Darwin University.
[1] At the completion of the hearing on Friday, 25 May 2018, I issued a Protected Action Ballot Order[1] in this matter and advised the parties that I would issue my reasons for decision in due course. These are my reasons.
[2] This is an application for a protected action ballot order by the National Tertiary Education Industry Union (NTEU) in relation to certain employees employed by Charles Darwin University (the University) as Educators and whose employment is presently covered by the Charles Darwin University and Union Enterprise Agreement 2013[2], (the 2013 Agreement), the nominal expiry date of which is 31 December 2016.
[3] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).
[4] The Applicant seeks to ballot all employees of the NETU who will be covered by the proposed enterprise agreement and for whom the NTEU are their bargaining representatives. The material filed in this application by the NTEU asserts that they are bargaining representatives for the purposes of s.176(1) of the Act and that they are genuinely seeking to reach agreement. The Applicant proposes four individual questions to which respondent employees will need to answer with "yes" or "no" responses. The questions are prefaced with a common preamble. In complete form, the questions are:
"In support of reaching an Enterprise Agreement with Charles Darwin University, do you authorise industrial action against your employer to be taken separately, concurrently and/or consecutively, on any number of occasions, in the form of:
[5] The University opposed the application, seeking amendment to the application in four respects, namely:
Amendment to the preamble to the questions to be put to employees so that it limits the industrial action for which support is sought from employees to be occasions that do not have an impact upon the student body sitting exams, having exams marked, releasing exam results or graduating;
An extension pursuant to s.443(5) of the Act of the period of written notice pertaining to any notification of protected industrial action to five working days instead of three, with the Commission to be satisfied that there are exceptional circumstances, justifying such extension;
In the absence of an amendment in the favour of the Respondent to the question preamble, that the Commission exercise of its own motion powers pursuant to s.424 of the Act issuing an additional order suspending protected industrial action that may flow from the granting of this order to the extent that it impacts upon the student population during exams including the supervision of exams, the marking of exams, the releasing of exam results or graduation ceremonies for students; and
An amendment to what would otherwise be a requirement for the University to provide information about its employees to the protected action ballot agent at the same time as the NTEU.
[6] The NTEU application was lodged late on Friday, 18 May 2018 and assigned to me to be dealt with on Tuesday, 22 May 2018 after it becoming apparent that the Respondent did not consent to the making of the order sought by the NTEU. The matter then proceeded to hearing before me on Wednesday, 23 May 2018 and later, on Friday 25 May 2018. An adjournment was sought from the first hearing by the NTEU representative who requested additional time to adequately respond to the matters raised by Charles Darwin University. After being originally scheduled for resumption on Thursday, 24 May 2018 the NTEU requested a further adjournment in order to allow more senior representation and the hearing of the matter was then finalised on Friday, 25 May 2018. Because of these matters, determination of the application within two working days of having been made was not practicable (s.441(1)).
[7] At the start of the proceedings on Wednesday, 23 May 2018 the Respondent Charles Darwin University, was granted permission to be represented by a lawyer pursuant to the provisions of s.596 (2)(a) and (c) of the Act and I undertook to provide reasons for my decision.
[8] The grounds upon which the University sought legal representation were threefold. Firstly, they submitted that legal representation would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter and the need to interpret technical legal arguments and statutory provisions contained within the application. Additionally, the University submitted that it only has two dedicated Employee Relations Advisors whose experience lie in operational employee relations not advocacy in the Commission. As such the University did not have the ability to effectively represent itself. Finally, the University submitted that due to the staff members inexperience that it would be unfair not to allow them to be legally represented, given the specialist expertise that the NTEU's industrial officers have in dealing with questions of industrial law.
[9] Section 596 of the Act regulates when a party may be represented by a lawyer or paid agent in proceedings before the Commission, with the tests relevant to this matter being set out in s.596(2), which provides as follows;
(1) The FWC may grant permission for a person to be represented by a lawyer or paid agent in a matter before the FWC only if:
(a) it would enable the matter to be dealt with more efficiently, taking into account the complexity of the matter; or
(b) it would be unfair not to allow the person to be represented because the person is unable to represent himself, herself or itself effectively; or
(c) it would be unfair not to allow the person to be represented taking into account fairness between the person and other persons in the same matter.
[10] In granting Charles Darwin University's application for permission for representation by a lawyer, I had regard to the proper interpretation of s.596, which was considered by Flick J of the Federal Court in Warrell v Walton[3]:
"[24] A decision to grant or refuse "permission" for a party to be represented by "a lawyer" pursuant to s 596 cannot be properly characterised as a mere procedural decision. It is a decision which may fundamentally change the dynamics and manner in which a hearing is conducted. It is apparent from the very terms of s 596 that a party "in a matter before FWA" must normally appear on his own behalf. That normal position may only be departed from where an application for permission has been made and resolved in accordance with law, namely where only one or other of the requirements imposed by s 596(2) have been taken into account and considered. The constraints imposed by s 596(2) upon the discretionary power to grant permission reinforce the legislative intent that the granting of permission is far from a mere "formal" act to be acceded to upon the mere making of a request. Even if a request for representation is made, permission may be granted "only if" one or other of the requirements in s 596(2) is satisfied. Even if one or other of those requirements is satisfied, the satisfaction of any requirement is but the condition precedent to the subsequence exercise of the discretion conferred by s 596(2): i.e., "FWA may grant permission...". The satisfaction of any of the requirements set forth in s 596(2)(a) to (c) thus need not of itself dictate that the discretion is automatically to be exercised in favour of granting "permission"."[4]
[11] It is well established that in order for permission for representation to be granted under this section, the Commission must first determine if there exists a jurisdictional prerequisite to the exercise of discretion by virtue of at least one of the three conditions in s.596(2) of the Act being met. The Commission must then decide whether or not to exercise the discretion to grant permission.[5] The task of determining whether any of the criteria in s.596(2) is satisfied involves the making of an evaluative judgment akin to the exercise of a discretion.[6] Considerations under s.596 are not confined to permission for courtroom advocacy and the only relevant limitation on the scope of representation identifiable in s.596(1) is that it must be in a matter before the FWC; and that the section operates in conjunction with the Fair Work Commission Rules, rules 11 and 12.[7]
[12] In respect of s.596(2)(a), even if legal representation would enable a matter to be dealt with more efficiently, a lack of complexity may still mean that permission is refused.[8] Sheer volume of documents or the existence of extraneous issues does not equate to complexity.[9] While the consideration of complexity must be treated as a matter of significance in consideration of this criterion, ultimately the issue is whether the grant of permission would enable the matter to be dealt with more efficiently.[10] There may be many grounds for a consideration of "efficiency" and familiarity with the subject matter, the conceptualisation and organisation of argument in the statutory context and marshalling of relevant materials may be matters that assist in the efficient conduct of the hearing of a matter, as may the increased alacrity with which cross-examination may be carried out, as well as familiarity with the Act and authorities in the context of a jurisdictional question.[11] The expertise and familiarity with the issues before the Commission of human resource practitioners or in-house counsel may also be relevant.[12]
[13] The relevant complexity in this particular matter is whether, in all the circumstances the Respondent's contentions about the framing of the questions to be put to employees as well as a separate order pursuant to s.424 are made out for reason of matters of statutory interpretation or otherwise. Resolution of these matters within the context of a protected action ballot order application has some complexity, and it was considered at the time that permission for legal representation of the Respondent would assist the matter to be dealt with more efficiently.
[14] Section 596(2)(c) enables a grant of permission for representation by lawyer or paid agent if the Commission is satisfied that it would be unfair not to allow that representation taking into account fairness between the person to be represented and the other persons involved in the same matter. I accept the proposition set out above advanced by the Respondent in relation to its expertise relative to that of the Applicant in this matter. Accordingly, consideration of the section also resolves in favour of a grant of permission for legal representation of the employer.
[15] Consequently, I was satisfied that representation of Charles Darwin University by a lawyer would assist the matter to be dealt with more efficiently and so permission for legal representation was granted.
[16] As a result, first Heinz Schmitt and then Cameron Smith appeared for the NTEU. Daniel Trindade and then Jennifer Wyborn, solicitors, from Clayton Utz, appeared on behalf of Charles Darwin University.
[17] In considering this application I must apply s.443 of the Act which provides:
"443 When the FWC must make a protected action ballot order
(1) The FWC 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) the FWC 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) The FWC 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:
(a) the name of each applicant for the order;
(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 the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If the FWC 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."
[18] In the course of the proceedings Charles Darwin University advised that it opposed the application, as it did not make it clear that any industrial action must not impact on the supervision of exams, the marking of exams, the release of exam results or graduation ceremonies of students. The University considers any industrial action that affects those activities would endanger student welfare. As such it sought amendment to both the formulation of the questions to be put to employees in a ballot and also to the Directions proposed to be issued by the Commission in relation to the information to be provided by the University to the protected ballot agent.
[19] Charles Darwin University submits four matters concerning the draft order and the associated Directions to be issued by the Commission.
[20] First, the University seeks that the preamble to the questions to be put to employees be amended so that it limits the industrial action for which support is sought from employees to be occasions that do not have an impact upon the student body sitting exams, having exams marked, releasing exam results or graduating.
[21] Second, in the form of an alternative to the first and as an addition to the order proposed by the NTEU, Charles Darwin University seeks that pursuant to s.443(5) of the Act that the period of written notice pertaining to any notification of protected industrial action be longer than three working days and instead be five working days, with the Commission to be satisfied that there are exceptional circumstances justifying such extension.
[22] Third, the University seeks, in the absence of an amendment in the favour of the Respondent to the question preamble, that the Commission exercise of its own motion powers pursuant to s.424 of the Act issuing an additional order suspending protected industrial action that may flow from the granting of this order to the extent that it impacts upon the student population during exams including the supervision of exams, the marking of exams, the releasing of exam results or graduation ceremonies for students.
[23] Fourth, Charles Darwin University seeks an amendment to the provision of information proposed by the NTEU. As drafted by the Applicant, the draft order requires that the University provide information about its employees to the protected action ballot agent at the same time as the NTEU. The University seeks to be relieved from the obligation to provide information to the ballot agent at the same time as the union.
[24] The NTEU opposed each of these proposed amendments.
Amendment to the questions - student health and safety
[25] The NTEU draft questions are open-ended and do not restrict in any way the taking of protected industrial action, if authorised by the ballot, in relation to matters that would impact upon the University student body. Charles Darwin University apprehends a concern that industrial action may well be taken by employees in such a manner as to significantly impact upon students. In this regard it notes that the NTEU originally nominated closing date for the ballot, 14 June 2018 is in the second week of the semester exam periods. That date has since been amended by the NTEU to Monday, 18 June 2018. Accordingly, in relation to the originally nominated closing date for the ballot, the University is concerned that industrial action that may be taken by the NTEU and its members may impact upon the supervision of exams, the marking of exams, the provision of results and graduation ceremonies for students. In its oral submissions the University put forward that even were a later date were to be considered the practicality of exams, marking them and providing results to students meant that the tasks associated with exams would go well beyond 14 June 2018. The University also puts forward that it is possible that industrial action may impact upon future studies of the students as well as the option of undertaking supplementary exams if that became necessary.
[26] Charles Darwin University proposes that the preamble to the questions put forward by the NTEU be modified in such a way as to ensure that industrial action, if authorised, would not be in respect of actions which impacted upon students undertaking exams, including the supervision of exams, the marking of exams, the releasing of exam results of graduation ceremonies for students. The preamble to those questions would be amended if the Respondent's application is successful so that it read (the underlined words are the words sought to be added);
"In support of reaching an enterprise agreement with Charles Darwin University, do you authorise industrial action (provided such industrial action does not impact upon the student population sitting exams, having exams marked, receiving exam results or graduating) against your employer to be taken separately, concurrently and/or consecutively, on any number of occasions".
[27] In relation to whether questions proposed by the NTEU are themselves allowable within the construct of s.443 of the Act, the starting point for consideration of the questions to be put to employees to be balloted is the analysis by the Full Bench in John Holland Pty Ltd v AFMEPKIU[13] which found, in relation to a potentially ambiguous ballot question that "all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them" and that "in most cases the drafting of the questions will be a matter for the applicant".[14] Of course within this reasoning there is no indication by the Full Bench that there will never be a circumstance in which the Commission will interfere in the questions proposed by a protected action ballot order applicant; merely that usually the nature of the question will be a matter for the applicant. While removal of ambiguity within a protected industrial action ballot question might be something to be strived for, the mere presence of ambiguity is not a reason for interference by the Commission in the question to be put to employees;
"... If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s 414 was not authorised by the ballot and that the action is not protected for the purposes of s 409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.'[15]
[28] The broader context of this reasoning is that the action for which approval is sought must itself describe the nature of the industrial action for which approval is sought in the question[16] and the industrial action must be within the definition provided by the Act;
"[24] The question whether action described in an application for a protected action ballot order is capable of being properly described as industrial action within the meaning of s.19 of the FW Act is answered primarily by construing the words used in any proposed question, ascertaining the nature of the action described by the proposed question and determining whether that action (having regard to the work performed by employees who are to be balloted) is capable of falling within the exhaustive statutory definition of industrial action. ..."[17]
[29] In the ordinary course, in which considerations of ambiguity or lack of connection with the definition of industrial action are tested, I do not see reasons to modify the NTEU's proposed question or preamble.
[30] Beyond the matters of ordinary consideration, it is argued by Charles Darwin University that to make the amendments it seeks would be consistent with the reasoning within the earlier decisions of the Commission which suspended industrial action because of the Commission's apprehension that there would otherwise be an endangerment to students' health or welfare. In this regard it refers to the Full Bench decisions on the matters of NTEU v University of South Australia,[18] (University of South Australia) and NTEU v Monash University,[19] (Monash). The two matters relate to the suspension of industrial action in the form of bans on recording or transmission to the employer assessment results and an apprehension on the part of the Commission that such ban impacted upon the personal safety or health of the student body sufficient to enliven the Commission's obligations under s.424 of the Act.
[31] It is submitted that it would be appropriate for the Commission in this matter to construe the nondiscretionary power in s.443 requiring the Commission to make a protected action ballot order in certain circumstances, in such a way as to take account of the Full Bench's findings in University of South Australia and Monash in respect of the impact of certain industrial action upon students health or welfare as being a reason to modify the questions proposed by the NTEU to be put to employees in a protected action ballot. In this regard Charles Darwin University relies on principles of statutory construction to argue that the provisions of s.443 be read in light of, and conformity with, s.424, which deals with the suspension or termination of protected industrial action. Both sections are within the same Part of the Act, Part 3 - 3, albeit within different Divisions.
[32] The University's submissions on the subject include the following:
"3. Section 443 of the FW Act imposes on the Commission a non-discretionary power to make a protected action ballot order in relation to a proposed enterprise agreement if certain criteria are met. The Respondent does not challenge that the criteria are met in this case.
4. The Respondent does, however, submit that the application of the power under Section 443 should be considered in light of existing case law under Section 424 of the FW Act which makes it clear that there are particular circumstances under which industrial action "must be suspended or terminated" (also a non-discretionary power) in order to avoid the absurdity of a an order being granted to allow industrial action to commence which must then be automatically suspended or terminated.
5. The Respondent draws the Commissions attention to and relies on the findings of Lord Wensleydale in Grey v Pearson [1857] EngR 335; (1857) 6 HLC 61 at 106:
in construing ... statutes and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency.
6. An interpretation of section 443 that would allow the granting of an Order that would then automatically require an application for suspension or termination under section 424 is, in the Respondent's submission, clearly absurd and exactly the sort of repugnant outcome that the above ordinary principles of statutory interpretation should be applied to avoid."
[33] In practical effect I understand this submission to be one to the effect that the clarity of the Full Bench is such that university-based industrial action that may impact upon students during the exam period or awaiting the results of the exams as such action would ordinarily be accepted by the Commission as enlivening the obligation under s.424 of the Act to suspend or terminate the industrial action because of its effects upon the life, personal safety or health or welfare of students. The reasoning put to the Commission in this matter is that the nature of Charles Darwin University and its student calendar is such that it is readily foreseeable, if not inevitable, that any industrial action notified by the union as a product of an authorised ballot which had an impact upon the student population would ultimately fall within the circumstances that led the Full Bench in Monash to confirm the suspension of protected industrial action.
[34] Section 443 is within Division 8 of Part 3 - 3 of the Act and s.424 is within Division 6 of the same Part. Whereas other parts of chapter 3 of the Act have particular objects (for example Part 3 - 2 (Unfair Dismissal)), Part 3 - 3 (Industrial Action) does not. Sections 443 is set out above and s.424 is in the following terms;
"424 FWC must suspend or terminate protected industrial action - endangering life etc.
Suspension or termination of protected industrial action
(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.
(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L - the Minister of the State who has responsibility for workplace relations matters in the State;
(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory - the Minister of the Territory who has responsibility for workplace relations matters in the Territory;
(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.
(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.
(5) An interim order continues in operation until the application is determined."
[35] The High Court has said following about the task of statutory interpretation;
"69. The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.
70. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
71. Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent"."[20]
[36] In this particular matter, the context of s.443, is of course within Part 3 - 3, dealing more generally with matters of the contemplation, authorisation, commencement and taking of protected industrial action as well its suspension and termination. Protected industrial action in the form of employee claim action must be industrial action within the meaning of s.19 of the Act and must have been authorised by protected action ballot (s.409 (2)). Such action must then have been notified pursuant to the provisions of s.414.
[37] Within s.443, the terms which are set out above, are the obligations that the application must be made under s.437 with the Commission being satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees to be balloted. There is both an obligation upon the Commission to make an order that meets these tests, as well is to not make an order except when the application meets the circumstances as set out in s.443(1). Any resultant order from the Commission must specify various things including questions for employees to respond to which include "the nature of the proposed industrial action" (s.443(3)).
[38] It is significant, for the purposes of drawing a construction about s.443, that there is both an obligation upon the Commission under ss.443 (1) - (2) to both make an order within the circumstances defined in s.443(1) as well as to not make an order other than in those defined circumstances.
[39] The considerations within s.424 are different to those within s.443. An order must be made under s.424 for the suspension or termination of protected industrial action where the Commission is satisfied that the action has threatened, is threatening or would threaten matters of life, safety or health or welfare, or matters of significant damage to economic interests.
[40] After consideration of the respective provisions, I am not satisfied that there would be a basis upon which reasoning adopted in relation to the tests used by the Commission for the suspension or termination of protected industrial action could properly be brought within considerations of the determination of an application for a protected action ballot order. The provisions within s.443 and Division 8 standalone from the matters that would properly be taken into account in determination of applications under s.424, within Division 6. This is not a circumstance in which there is any conflicting language employed between the two sections or divisions. The matters within s.443 have their own tests, focused upon the application that has been made and the conduct of the applicant for a protected action ballot order. The considerations within s.424 are entirely different, with entirely different tests, with the focus being upon the impact of properly notified and authorised protected industrial action.
[41] The argument advanced by the Charles Darwin University in this matter is not that the questions are ambiguous, or that they do not describe things which are industrial action, but that repeated and settled reasoning of the Full Bench in relation to what will lead to the suspension of protected industrial action in a tertiary student setting should be viewed as sufficient to motivate the Commission to have a proposed question refused or changed. In short, since a question that allows the disruption of exams or their marking or transmission of results would, in the view of the Respondent, lead to resultant protected industrial action being suspended or terminated, such questions should not be put to employees in the first place.
[42] In considering the implication of the submission before me, it is be noted that Monash concerned a notification of protected industrial action, already authorised by a protected action ballot, with the action notified being tightly and precisely drafted, being an indefinite ban as follows;
"A ban on recording, or transmission to the employer, of assessment results, with the exception of results for which an exemption has been granted by the NTEU Exemptions Committee".[21]
[43] A similar situation existed in University of South Australia, with the relevant protected industrial action being the ban on recording and transmission of examination results.[22]
[44] In contrast the questions sought to be included within the order sought by the Applicant in this matter are broader. In particular people participating in the ballot will be asked to authorise four classes of action;
Stoppages of the performance of work of between 15 minutes and 24 hours in duration? Yes □ No □
A ban on participation in Charles Darwin University Events? Yes □ No
A ban on working overtime? Yes □ No □
A ban on work outside the span of hours? Yes □ No □
[45] Once a protected action ballot order has been authorised by ballot it is then of course the case that the party seeking to commence employee claim action is required to provide notice of the precise action to be taken (s.414) with it being a requirement that the notice given specifies the nature of the action and the day on which it will start. At least in respect of the nature of the action there is an opportunity for more generally authorised action to be targeted according to the desires of the people involved. In some respects it is the case that a general authorisation of something along the lines of "stoppage of the performance of work of between 15 minutes and 24 hours in duration" would necessarily have to be targeted down in order for it to meet the requirement in s414(6) for the notice of industrial action to specify the nature of the action.
[46] The breadth of the questions in the Applicant's application are in important distinction to the matters before either the Monash or _University of South Australi_a Full Benches. In both cases the matters which led to the suspension of industrial action were about the recording and transmission of exam results. What is sought by the Respondent in these proceedings is that each of the questions to be put to employees be limited so that the action which is authorised cannot impact upon the student population sitting exams, having exams marked, receiving exam results, or graduating. Those matters are greatly in excess of the circumstances before the Full Bench in either Monash or University of South Australia, which were concerned only with bans on the recording and transmission of exam results.
[47] It is not to be seen within those decisions that a ban by employees upon the conduct of exams would automatically lead to a conclusion that such also had the requisite impact of health or safety upon students. It is not, for example, beyond the wit and wisdom of the employer contemplating a response to protected industrial action to find exam invigilators beyond the scope of the NTEU members taking protected industrial action or to find a hall in which exams may be conducted which do not have to be set up by NTEU members. In the absence of evidence from the Respondent on the subject (and none was called by it on any of the matters dealt with in its objections), it is also not impossible to contemplate that there will be a sufficient body of exam markers within those employees who are not members of the union to undertake marking, albeit a little more slowly than might otherwise be desirable.
[48] Necessarily the availability of these possible scenarios, as well as the potential for variability both in the precise nature of the industrial action to be taken and the response to be implemented by the employer diminishes the prospect of the Commission accepting the submission favoured by the University.
[49] Quite properly in these circumstances, the process that should be implemented is for a question for proposed protected industrial action to be put to employees; for the NTEU, in the event that the proposal is authorised, to notify with precision the protected industrial action that is to be taken; for the University to then assess the impact of the notified industrial action and consider a response; and, if, at that point should the requisite legislative tests under s.424 of the Act, or elsewhere be met, to then seek suspension or termination of the industrial action.
[50] Necessarily one of the tensions with industrial action is that it causes anxiety and sometimes disruption even at the point it is contemplated let alone where it actually commences. The anxiety may well be that the employer finds the prospect of protected industrial action uncomfortable, least of which because of the impact it may have upon its customers, in this case students, who may complain or take their business elsewhere. Those complaints, if they were to eventuate, may diminish the University's reputation and standing. Beyond the anticipatory anxiety of contemplated protected industrial action follows that which is actually implemented which, by design and definition, will be inconvenient for all concerned. Those expected tensions, anxiety, disruption and inconvenience in themselves do not amount to reasons why the Commission should interfere in the drafting of the question to be put for protected industrial action. If they were, probably no protected action ballot question would ever be approved by the Commission.
[51] Even so, were it the case that the Applicant in these proceedings sought approval from employees for a question along the lines of "do you authorise a ban on the holding of exams or the recording or transmission to the employer of assessment results?" it may well be that the Commission finds it desirable to accept the construction favoured by Charles Darwin University and directly interpose in the drafting of the question to be put to employees. Such though would have to be the subject of an actual question framed in the manner referred to, as well as cogent evidence about its likely effects.
[52] As a result, the first of the University's proposals about the NTEU's questions fails. I do not consider there to be a proper basis upon which to make an amendment to the proposed questions.
[53] The second of Charles Darwin University's objections is, in the form of an alternative to the first, to the effect that, pursuant to s.443(5) of the Act that the period of written notice pertaining to any notification of protected industrial action be longer than three working days and instead be five working days, with the Commission to be satisfied that there are exceptional circumstances justifying such extension. The University's case on the matter is not sophisticated and not based in evidence before the Commission and is entirely comprised in the proposition that if there were to be protected industrial action notified that fell within the scope of the considerations in Monash and University of South Australia, then it would need longer than three working days' notice in order to seek the suspension or termination of the industrial action. The NTEU argued that this consideration did not amount to an exceptional reason as set out in s.443(5), referring to the Commission's consideration of the term in AMIEU v Coles Supermarkets Australia Pty Ltd, citing CEPU v Australian Postal Corporation:
"[21] Despite the commendable agreement between the Union and Coles on the terms of the draft order incorporating an extended notice period, the Commission is still required to be satisfied that there are exceptional circumstances justifying the period of written notice being longer than 3 working days, pursuant to s.443(5) of the Act. In this regard, the Commission relies on the submissions made by counsel for Coles, Mr Gardner and supported by Mr Buckley on behalf of the Union.
[22] It is necessary to examine, whether or not the circumstances demonstrate something exceptional. An inconvenient result or outcome to Coles will not be sufficient.
[23] Mr Gardner referred the Commission to the decision in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation (CEPU v Australia Post)[23] 3 In that decision, Vice President Lawler, referring to the Decision of Rares J in Ho v Professional Services Review Committee No 295_[24]4,_ stated the following:
"[10] In this passage his Honour was concerned with the ordinary meaning of the expression "exceptional circumstances" and the approach identified is, in my view, equally applicable to the use of that expression in s.465(3). In summary, the expression "exceptional circumstances" requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe "exceptional circumstances" as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural "circumstances" as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of "exceptional circumstances" includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.
[11] However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances "justifying" the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441."
"[21] Essentially, what is required in determining whether exceptional circumstances justify an extension of the required notices period is a weighing of the interests of the employer and third parties in the employer having a greater opportunity to take appropriate defensive action as against the diminution in the effectiveness of the employees' bargaining power that results from such an extension. The fact that the legislature has seen fit to condition the ordering of an extension of the required notice period on the presence of exceptional circumstances justifying it, as distinct from merely conferring a simple discretion to extend the required notice period, indicates that ordinarily there should be no extension.
[22] The first example provided in Davids Distribution provides an illustration of where exceptional circumstances may justify an extension of the required notice period. A sophisticated piece of plant, such as a smelter, may take many days to shut down without damage. The employer is exposed to wholly disproportionate damage if it is prevented by too limited a notice period from undertaking an orderly shutdown of the plant. A further example may be afforded by a strike by teachers where the school needs to be able to notify parents of the strike so as to give them an opportunity to make alternative arrangements for the care of their children on the days of the strike. Typically, three working days will be insufficient for this purpose..." (references from original)
[54] Despite this matter not being the subject of evidence before me, I am prepared to find exceptional circumstances within the matter before me. The predisposition of the Commission faced with an application to suspend or terminate notified industrial action that had a direct negative impact on the student body of the type articulated within Monash and University of South Australia is the exceptional circumstance. It may be seen both that the University would likely seek suspension of such action and that the Commission would likely lean toward its suspension. For that reason, the order to be issued by me will include the following s.443(5) extension;
In accordance with section 443(5) of the Act, before a person engages in protected industrial action which will have, or will be likely to have an impact upon the student population sitting exams, having exams marked, receiving exam results or graduating, the NTEU will provide Charles Darwin University with written notice of the proposed action in accordance with s.414 of the Act, with the period of notice to be at least 5 working days."
Order suspending or terminating protected industrial action
[55] The third of Charles Darwin University's submissions about the questions before the Commission is to the effect that it seeks, in the absence of an amendment in the favour of the Respondent to the question preamble, that the Commission exercise of its own motion powers pursuant to s.424 of the Act suspending protected industrial action that may flow from the granting of this order to the extent that it impacts upon the student population sitting exams, including the supervision of exams, the marking of exams, releasing results of exams and graduating ceremonies. The extent of the University's submissions is set out in its Short Particulars filed in response to a Direction given by me:
"14. In the alternative, if the Commission is not persuaded by the Respondent's submissions in relation to the proper construction of section 443 of the FW Act, the Respondent submits that the Commission should, after granting the Order under section 443 move to terminate the proposed industrial action contemplated by the Order to the extent it would cover the relevant activities, at its own initiative, on the grounds that such proposed industrial action would threaten the welfare of the student population.
15. The Respondent further submits that the factual evidence provided in NTEU v Monash University (2013) FWCFB 5982 about the threat to the welfare of the student population posed by industrial action involving the relevant activities is of a general nature that reflects the experience of all student populations such that the Commission may take judicial notice of that experience and not require specific evidence in this case in order to exercise the power under section 424 at its own initiative."
[56] The proposition has not been sufficiently or persuasively argued for it to be entertained. On the one hand the University conceded that it did not know of any other Commission decisions dealing with the relief it sought, and on the other hand, it failed to develop its argument to the point there could be said to be a case for the NTEU to answer. The application by Charles Darwin University also does not deal at all with the impediment that would arise because of the tests within s.424 of the Act. The section deals with the suspension of "protected industrial action", a term which encompasses employee claim action. In turn, employee claim action is defined to be action that, amongst other things, has been authorised by a protected action ballot (s.409(2)). There has been, at this time, no authorisation of anything by a protected action ballot. For the reason that there is no protected industrial action, there is none which is being engaged in, threatened, impending or probable. The request by the University for the Commission to exercise its powers under s.424 of the Act is not jurisdictionally competent and is refused.
Amendment to order requiring provision of information by the University
[57] The draft order proposed by the NTEU sets out the following obligations for the provision of information by both University and the NTEU to the protected action ballot agent:
8.1 The Employer is to provide to the Protected Action Ballot Agent by 4:00pm on the third working day after the day the order is issued a list of its employees (as at the date of this order), being a list that includes all of the employees who would be covered by the proposed enterprise agreement, in the following format:
The list is to be provided in the form of a Microsoft Excel compatible spreadsheet in a file named "B2017-YYY - Employee List", or in such other form agreed with the Protected Action Ballot Agent.
The list is to be in alphabetical order of surname.
(c) The list is to contain the information (if known) for each employee who would be covered by the proposed enterprise agreement as indicated by those column names set out below:
Column 11: Whether the employee is on leave during the whole period from the date of the order to the date the ballot closes.
8.2 The list is to be provided by email to the Protected Action Ballot Agent at the address:
8.3 The list must be accompanied by a declaration in accordance with reg.3.15 of the Regulations.
8.4 The Employer may provide the list of employees to the Protected Action Ballot Agent by way of encrypted or password protected email that is accessible by the Protected Action Ballot Agent.
9.1 The Union is to provide to the Protected Action Ballot Agent by 4:00pm on the third working day after the day the order is issued a list of its members (as at the date of this order) employed by the Employer in the following format:
The list is to be provided in the form of a Microsoft Excel compatible spreadsheet in a file named "B2017-YYY - Member List", or in such other form agreed with the Protected Action Ballot Agent.
(b) The list is to be in alphabetical order of surname.
(c) The list is to contain the information (if known) for each member as indicated by those column names set out below:
9.2 The list is to be provided by email to the Protected Action Ballot Agent at the address:
9.3 The list must be accompanied by a declaration in accordance with reg.3.15 of the Regulations."
[58] Charles Darwin University submits that it should be relieved of the obligation to provide the information set out in draft Order 8. The University's submissions in this regard are:
"The University seeks amendments to the Draft Order in the following ways:
(a) Given that NTEU membership is less than 100% of employees of the University to be covered by the proposed enterprise agreement, the University not be required to produce a list of all employees to be covered to the Protected Ballot Agent;
(b) Instead, that the NTEU be required to first provide the University with a list of the individual employees who will be covered by the Draft Order and the University then be required to provide to the Protected Ballot Agent the details at 8.1(a) of the Draft Order to the Protected Ballot Agent.
12. In addition to reducing the administrative burden on the University, this will allow the University to determine which employees are protected by the Order and ensure it complies with its obligations under the Fair Work Act 2009 (Cth) in relation to payment".
[59] In relation to the form of the Order and the Directions, and especially item 8 of the Draft Order, I note the Respondent's argument regarding the administrative burden which may follow from the requirements presently listed. I consider that the argument may have some, but not overwhelmingly persuasive, merit. It is also relevant for me take into account the desirability for the ballot to proceed as expeditiously as possible.
[60] As a result a proper way to proceed is for me to continue to include the proposed order 8, but in a simplified form. It is not completely clear to me why the NTEU proposed order has been drafted in the manner it has, and it is most likely that it has been over-engineered beyond that which is strictly necessary for the effective and timely conduct of the ballot. Some of the information listed within draft order 8 simply does not seem to be relevant for the purposes of crosschecking the names on two lists. Accordingly I propose to modify draft order 8 by deleting from 8.1(c) columns 6, 7, 8, 9, 10 and 11.
[61] Since the proposed protected action ballot order is not the Australian Electoral Commission, a further matter raised by myself went to the issue of the Commission being satisfied of the criterion within s.444(2) of the Act, elaborated upon within regulation 3.11, relating to the protected action ballot agent and persons engaged by it being a fit and proper person. Suitable evidence about the status of the protected action ballot agent has since been filed by the NTEU. As a result the union submits that the statutory criteria in respect of the agent have been made out and Charles Darwin University makes no submissions on the subject. I am satisfied because of the material since filed by the Applicant about the protected action ballot agent that the requirements of s.444 as well as the regulations have been met and that it is appropriate for me to make an order including Cirrena IVS Pty Ltd as the protected action ballot agent.
[62] After consideration of all of the matters put to the Commission about the proposed question elements, I am satisfied that the question elements are within the power of the Commission to order and that it is otherwise appropriate to make the orders sought by each of the Applicants.
[63]
Having determined these matters, and being satisfied that the requirements of s.443(1)(a) and (b) of the Act have been complied with, I must make a protected action ballot order, as sought by the NTEU. An order will be issued by the Commission which modifies the NTEU's proposed order in the manner set out above.
Mr D. Trindade, later Ms J. Wyborn for the Respondent
Mr H. Schmitt, later Mr C. Smith for the National Tertiary Education Union.
[4] Accepted by the Full Bench of the Commission as the correct approach to s.596 of the Act in New South Wales Bar Association v McAuliffe; Commonwealth of Australia represented by the Australian Taxation Office [2014] FWCFB 1663.
[5] Appellant v Respondents [2014] FWCFB 4297; Emily Oratis v Melbourne Business School [2014] FWCFB 3869 [5].
[6] Asciano Services Pty Ltd v Hadfield [2015] FWCFB 2618 [19].
[7] Stephen Fitzgerald v Woolworths Limited [2017] FWCFB 2797, [44] - [45].
[8] King v Patrick Projects Pty Ltd [2015] FWCFB 2679 [15].
[10] Singh v Metro Trains Melbourne [2015] FWCFB 3502 [16].
[11] Smith v James Cook University [2016] FWC 6010 [6]-[7].
[13] [2010] FWAFB 526, 194 IR 139.
[16] Mornington Peninsula Shire Council v ASU, [2017] FWCFB 4740, [38].
[18] [2010] FWAFB 1014, 194 IR 30.
[20] Project Blue Sky v Australian Broadcasting Authority, [1998] HCA 28, (1998) 194 CLR 355, per McHugh, Gummow, Kirby and Hayne JJ
[21] [2013] FWCFB 5982, [3].
[22] [2010] FWAFB 1014, 194 IR 30, [2].
[24] [2007] FCA 388 (27 March 2007).
Printed by authority of the Commonwealth Government Printer
National Tertiary Education Industry Union
Charles Darwin University [2018] FWC 3020
(1998) 194 CLR 355