Australian Municipal, Administrative, Clerical and Services Union v National Tertiary Education Industry Union

[2019] FWC 1188

[2019] FWC 1188

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Municipal, Administrative, Clerical and Services Union
v
National Tertiary Education Industry Union
(B2019/141)

DEPUTY PRESIDENT CLANCY MELBOURNE, 22 FEBRUARY 2019

Proposed protected action ballot of employees of National Tertiary Education Industry Union.

[1] On 20 February 2019, the Australian Municipal, Administrative, Clerical and Services Union (the ASU) applied for a protected action ballot order (the Application). A further application was also received from the Media, Entertainment and Arts Alliance (the MEAA) and is dealt with in a separate Decision. 1 In making the Application, the ASU seeks an order that the following be balloted to see if they support the taking of protected industrial action:

“Those employees of the Respondent who are members of the Australian Municipal, Administrative, Clerical and Services Union (ASU) and would be subject to the proposed enterprise agreement, but excluding any employee who:

(a) has appointed another person under paragraph 176(1)(c) of the Fair Work Act 2009 as his or her bargaining representative for the agreement; or,

(b) has revoked the status of the ASU as his or her bargaining representative for the agreement under subsection 178A(2) of the Fair Work Act 2009.”

[2] The Application was accompanied by a statutory declaration declared on 19 February 2019 by Ms Renee Veal, a bargaining representative for ASU members.

[3] In the afternoon of 20 February 2019, correspondence was sent by the Fair Work Commission (the Commission) to the National Tertiary Education Industry Union (NTEU) seeking advice as to whether it opposed the Application.

[4] As no response was received, further correspondence was sent by the Commission to the NTEU in the late afternoon of 21 February 2019. The correspondence noted that the matter would be listed or reallocated if the NTEU did not advise its position by 10:00AM the following morning.

[5] In the morning of 22 February 2019, Mr Peter Summers of the NTEU contacted the Commission advising that it was not able to advise whether it opposed the application until close of business that day.

[6] The file was then allocated to my chambers and I caused a Notice of Listing to be dispatched, setting the matter down for a mention hearing by telephone at 2:00PM on 22 February 2019.

[7] Ms Joanne Knight from the ASU, Ms Dorcas Mbugua from the MEAA, Ms Veal and Mr Summers attended the mention hearing.

[8] At the commencement of the mention hearing, Mr Summers indicated that the NTEU did not oppose the applications made by the ASU and the MEAA.

[9] I have noted:

1. The ASU is a bargaining representative for the employees 2 and the restriction in s.437(2A) of the Act does not apply;

2. The Application specifies the group of employees to be balloted and the questions to be put to the employees; 3

3. The NTEU and the AEC were given a copy of the Application within 24 hours of it having been made. 4 This was confirmed by Ms Knight at the telephone mention hearing;

4. The nominal expiry date of the applicable agreement has passed; 5 and

5. The ASU has been and is genuinely trying to reach agreement with the employer of the employees who are to be balloted. 6

[10] Therefore, on the basis of the material before me and the submissions made and confirmation given by both parties at the telephone mention, I am satisfied the ASU has fulfilled the statutory prerequisites for a protected action ballot order, and accordingly, I must make a protected action ballot order. An Order will be issued separately to this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR705231>

 1   [2019] FWC 1187.

 2   Fair Work Act 2009 (Cth) s 437(1).

 3   Ibid, s 437(3).

 4   Ibid, s 440.

 5   Ibid, s 438(1).

 6   Ibid, s.443(1) and Form F34B at question 2.1.