Termination or suspension of bargaining period - s.170MW(1), (2) and (3)

[1] This is an application by the University of Wollongong (the university) to suspend or terminate a bargaining period initiated by the National Tertiary Education Industry Union (the NTEU). Following the initiation of the bargaining period, there has, during 1999, been a number of negotiations between the university and the NTEU with respect to a proposed agreement and industrial action has been taken on several occasions.

[2] A letter dated 24 November 1999 from the NTEU to the university included:

"Notice is given that officers, employees and members of the NTEU intend to organise and engage in the following industrial action:

(a) a ban on submission and transmission of student results to any Supervisor and/or to University administration generally, including attendance at markers' meetings or any other meeting to convey student results, on and from Tuesday 30 November 1999 ..."

[3] The present application was filed on 2 December 1999 and was heard yesterday. It seeks the suspension or termination of the bargaining period on the basis that the circumstances set out in s.170MW(2) or (3) exists or existed. At the hearing the university submitted that if the bargaining period were suspended the suspension should be until 13 March 2000, the start of the first term in 2000.

"(1) Subject to subsection (8), the Commission may, by order, suspend or terminate the bargaining period if, after giving the negotiating parties an opportunity to be heard, it is satisfied that any of the circumstances set out in subsections (2) to (7) exists or existed.

(2) A circumstance for the purposes of subsection (1) is that a negotiating party that, before or during the bargaining period, has organised or taken, or is organising or taking, industrial action to support or advance claims in respect of the proposed agreement:

(a) did not genuinely try to reach an agreement with the other negotiating parties before organising or taking the industrial action; or

(b) is not genuinely trying to reach an agreement with the other negotiating parties; or

(c) has failed to comply with any directions by the Commission that relate to the proposed agreement or to a matter that arose during the negotiations for the proposed agreement; or

(d) has failed to comply with a recommendation of the Commission under section 111AA that relates to the proposed agreement or to a matter that arose during the negotiations for the proposed agreement.

(3) A circumstance for the purposes of subsection (1) is that industrial action that is being taken to support or advance claims in respect of the proposed agreement is threatening:

(a) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or

(b) to cause significant damage to the Australian economy or an important part of it."

[5] I can say at once that I am not satisfied that the circumstances set out in s.170MW(2) or s.170MW(3)(b) exists or existed. No evidence was called by the university about the issues raised by these sections although submissions were made by it from the bar table about them. There was no agreement as to the facts. I am not prepared to act on submissions only.

[6] This leaves s.170MW(3)(a). The main contention of the university was that the industrial action of banning the submission and transmission of student results threatened to endanger the welfare of that part of the population which comprised students at the university.

[7] Evidence was called by the university from Associate Professor A Tennerman of the education department and Ms G Luck, the academic registrar.

[8] Associate Professor Tennerman's evidence concentrated on graduate students from her department who, she said, if their results were delayed, could be prejudiced in employment prospects with the NSW Department of Education and Training.

[9] Ms Luck's evidence was more general. She said some 1800-1900 students were expected to graduate at ceremonies to take place from Monday next, 13 December 1999. If their results were not available they could not graduate. Her evidence included that she had approached an "exemptions committee" established by the NTEU seeking an exemption from the ban on submitting and transmitting results for all graduating students. The response was "The answer is no".

[10] Evidence was called by the NTEU from Ms R Sproule of the department of law and Mr R Perrin of the department of finance and accounting. Both gave evidence about the "exemptions committee" including that a number of applications had been considered by it and granted. (Mr Perrin also gave evidence in relation to s.170MW(2) issues. In view, however, of my earlier ruling rejecting the application under s.170MW(2), I do not need to refer to this evidence.)

[11] The NTEU submitted that the application was premature because no industrial action would take place until 4 p.m. yesterday, the earliest time at which results were required by the university. (The hearing yesterday took place between 10 am and 1 pm.)

[12] The NTEU also argued that the making of an order under s.170MW was a serious step and that the taking of protected industrial action was in accordance with the Act. I agree.

[13] Section 170MW, nevertheless, allows the Commission to suspend or terminate a bargaining period in certain circumstances.

[14] The industrial action of banning the submission and transmission of students' results will continue indefinitely. Some 1800-1900 students of the university are expected to graduate this year. None of them will be able to do so while the ban remains in force. I am satisfied, having regard to the evidence and submissions, that the delaying indefinitely of the results of graduating students may prejudice their future employment prospects and careers, perhaps irreparably. Also, it will place these students at a disadvantage compared with students at other universities whose results are not delayed.

[15] I have considered the evidence about the "exemptions committee." The NTEU does not dispute that the committee may reject applications. In the circumstances where the union has imposed a ban on submitting and transmitting results and has a legitimate interest in making the ban bite, it does not seem to me that a union exemptions committee can be relied upon to avoid prejudice to the students. When such a committee rejects an application there is a possibility that a student's future prospects may be damaged.

[16] In all the circumstances, I record that I am satisfied that the circumstances set out in s.170MW(3) exist; that is, that industrial action (by way of a ban on the submission and transmission of students' results at the university) that is being taken to support or advance claims in respect of the proposed agreement is threatening to endanger the welfare of that part of the population that is constituted by graduating students of the university. In these circumstances, it is my decision to suspend the bargaining period for 1 month until 7 January 2000. To the extent that this decision places the interests of the students above those of the academic staff, I think that is appropriate.

[17] An order (Print S1689) giving effect to this decision is published with it.

D Wedgwood and P Tilbrook for the University of Wollongong

A Duffy and C Hinley for the National Tertiary Education Industry Union

Enterprise bargaining - suspension or termination of bargaining period - s170MW Workplace Relations Act 1996 - various employees, education industry - university sought to suspend bargaining period until start of first term in 2000 following notice of bans on transmission of student results from 30 November 1999 - s170MW of Act considered - university submitted delays threatened prejudice to employment prospects of graduate students - held - circumstances set out in s170MW(3)(a) exist - industrial action threatens to endanger welfare of graduate students notwithstanding action otherwise protected in accordance with Act - interests of students above those of academic staff - bargaining period suspended for one month until 7 January 2000.

University of Wollongong v National Tertiary Education Industry Union

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