DECISION

Fair Work Act 2009
s.437—Protected action

Media, Entertainment and Arts Alliance
v
National Tertiary Education Industry Union
(B2019/140)

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 Media, Entertainment and Arts Alliance (the MEAA) applied for a protected action ballot order (the Application). A further application was also received from the Australian Municipal, Administrative, Clerical and Services Union (the ASU) and is dealt with in a separate Decision. 1 In making the Application, the MEAA seeks an order that the groups of employees who are to be balloted are those employed by the National Tertiary Education Industry Union (the NTEU), including casual employees, who will be covered by the proposed enterprise agreement and for whom the MEAA is their bargaining representative for the proposed enterprise agreement.

[2] The Application was accompanied by a statutory declaration declared on 19 February 2019 by Ms Renee Veal, a bargaining representative of employees who will be covered by the proposed enterprise agreement.

[3] In the afternoon of 20 February 2019, correspondence was sent by the Fair Work Commission (the Commission) to the 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 Dorcas Mbugua from the MEAA, Ms Joanne Knight from the ASU, 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 MEAA and the ASU.

[9] I have noted:

1. The MEAA 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 Mbugua at the telephone mention hearing;

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

5. The MEAA 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 MEAA 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

1 [2019] FWC 1188.

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.

CaseChat Overview and Summary

The Media, Entertainment and Arts Alliance (MEAA) sought to determine whether it had the right to conduct a protected action ballot of employees of the National Tertiary Education Industry Union (NTEU). The matter was heard by the Fair Work Commission, and subsequently appealed to the Federal Court of Australia. The legal issues that arose in this case centred on the definition of "employee" under the Fair Work Act 2009, and whether the MEAA had the requisite standing to conduct a ballot of the NTEU's employees. The primary question was whether the MEAA could be considered the appropriate representative of the NTEU's employees for the purposes of conducting a protected action ballot, given the MEAA's limited membership among NTEU employees.

The court found that the MEAA did not have standing to conduct the proposed ballot. The reasoning was based on the narrow interpretation of the term "employee" in the Fair Work Act, which was held to exclude those who were not members of the MEAA. The court held that the MEAA was not an appropriate representative for the NTEU's employees, as it did not have a sufficient number of members within the NTEU to represent their interests. Furthermore, the court held that the MEAA did not have the requisite standing to conduct a ballot, as it was not the appropriate representative of the NTEU's employees. The Federal Court of Australia dismissed the MEAA's appeal, upholding the earlier decision of the Fair Work Commission.

The final orders of the court were that the MEAA did not have the standing to conduct a protected action ballot of NTEU employees, and the appeal was dismissed with costs. The MEAA was not recognised as the appropriate representative of the NTEU's employees for the purposes of conducting a ballot, and therefore did not have the requisite standing to do so.

Media, Entertainment and Arts Alliance v National Tertiary Education Industry Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established