Australian Education Union v Royal Melbourne Institute of Technology

[2024] FWC 1492

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Education Union
v

Royal Melbourne Institute of Technology

(B2024/732)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 7 JUNE 2024

Proposed protected action ballot of employees of Royal Melbourne Institute of Technology

This is an application by the Australian Education Union (AEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Royal Melbourne Institute of Technology (RMIT or Employer).

On 6 June 2024, the Commission was advised that the Employer, in effect, did not object to 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 declaration of Elaine Gillespie, Union Officer, setting out the steps taken by the AEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with it, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 28 June 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR775785.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 14 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Education Union (AEU) applied to the Fair Work Commission for a protected action ballot order regarding employees of the Royal Melbourne Institute of Technology (RMIT). The application was made under section 437 of the Fair Work Act 2009. The AEU sought the order to proceed with a ballot for protected industrial action due to ongoing disputes in bargaining for a new enterprise agreement. RMIT did not object to the application, leading the Commission to determine the matter based on the submitted documents without a hearing.

The primary legal issue was whether the conditions specified in section 443 of the Act were met for the Commission to grant the AEU's request for a protected action ballot. The AEU had to demonstrate that it had genuinely attempted to reach an agreement with RMIT, that there was a notification time for the proposed agreement, and that all procedural requirements were satisfied. The Commission reviewed the declaration by Elaine Gillespie, a Union Officer, which detailed the bargaining steps taken by the AEU and confirmed that the union had been genuinely trying to reach an agreement.

The Deputy President concluded that all the statutory requirements had been fulfilled, including the notification time for the proposed agreement and the procedural steps laid out in section 443(1) of the Act. The Commission approved the ballot to be conducted by TrueVote Pty Ltd, an approved agent under section 468A of the Act. The voting period was set to close on 28 June 2024, effectively 14 working days from the order date, in line with the application's request. The decision also included assigning the matter to another member for a compulsory conciliation conference to facilitate further negotiations.

The Commission issued an order granting the AEU's application for a protected action ballot. The voting period was set to conclude on 28 June 2024, and a compulsory conciliation conference was scheduled to ensure meaningful negotiations. This order was issued separately, and the case was assigned to another Commission member to oversee the conciliation process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established