National Tertiary Education Industry Union v

[2024] FWC 622

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Tertiary Education Industry Union
v

Victoria University

(B2024/202)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 11 MARCH 2024

Proposed protected action ballot of employees of Victoria University

This is an application by the National Tertiary Education Industry Union (NTEU 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 Victoria University (VU or Employer).

On 9 March 2024, the Commission was advised that VU, 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 Brandy Cochrane on behalf of the NTEU, setting out the steps taken by the NTEU in bargaining with VU and that it has been, and is, genuinely trying to reach agreement with them, 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 T/A TrueVote (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s 468A of the Act[1]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 March 2024. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR772193.

I have reordered the clauses of the Applicant’s proposed order to align with the Commission’s standard drafting style.

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 involved 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] TrueVote Pty Ltd [2023] FWC 1446.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union (NTEU) sought a protected action ballot order from the Fair Work Commission (FWC) in relation to certain employees of Victoria University (VU). The application was made under section 437 of the Fair Work Act 2009 and VU did not object to the application, resulting in the matter being determined on paper without a hearing. The NTEU aimed to conduct a ballot to potentially take protected action over a proposed agreement with VU.

The primary legal issue before the Deputy President was whether the NTEU had satisfied the statutory requirements for a protected action ballot order under the Fair Work Act 2009. This involved determining if the notification period had been met, if the NTEU had genuinely tried to reach an agreement with VU, and if the proposed ballot agent, TrueVote Pty Ltd, was approved. The Deputy President found that all requirements had been met, including the notification period, the NTEU’s genuine attempts at bargaining, and the approval of TrueVote as a ballot agent.

The Deputy President concluded that the NTEU had satisfied all statutory requirements and granted the protected action ballot order. The voting period was set to close on 28 March 2024. Additionally, a compulsory conciliation conference was scheduled to be conducted by another Member of the Commission to facilitate negotiations between the parties. An order was also issued requiring the attendance of all bargaining representatives at the conference, with potential directions to ensure meaningful negotiations.

The Deputy President ordered that the ballot take place by the specified closing date and mandated the compulsory conciliation conference for the parties to negotiate the proposed enterprise agreement. The matter was reassigned to another Member of the Commission to manage the conciliation conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established