National Tertiary Education Industry Union v Australian Catholic University

[2022] FWC 2281

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

Australian Catholic University

(B2022/1279)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 AUGUST 2022

Proposed protected action ballot of employees of Australian Catholic University.

This is an application by the National Tertiary Education Industry Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Australian Catholic University (the Respondent).

On 26 August 2022, my Associate was advised that the Respondent objected to the proposed industrial action identified in questions 6 and 11 of the draft order accompanying the application. I determined a Mention should be conducted, during which I discussed these matters with the parties and others subsequently raised. Following the Mention, the Respondent sent correspondence to my Chambers advising that it did not press its objection to the Applicant’s application for a protected action ballot order.

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 Mr Campbell George Smith of the Applicant, setting out the steps taken by the Applicant in bargaining and the assertion that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

The Applicant also sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Mr Stephen Donaldson (Business Owner of TrueVote Pty Ltd). I am satisfied that Mr Donaldson is a fit and proper person to conduct the ballot. I am also satisfied that he is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Donaldson has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

Therefore I appoint Mr Stephen Donaldson as the protected action ballot agent.
An order has been separately issued in PR745232.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Australian Catholic University. The application was made on the basis that the union had been genuinely trying to reach agreement with the university but had been unable to do so. The university initially objected to the proposed industrial action, but later withdrew its objection. The matter was determined on the papers without a hearing.

The legal issue before the Deputy President was whether the union had met the requirements for a protected action ballot order under the Fair Work Act. Specifically, the Deputy President had to consider whether the union had been genuinely trying to reach agreement with the university, and whether the notification time in relation to the proposed agreement had been met. The Deputy President also had to consider whether the proposed ballot agent was a fit and proper person to conduct the ballot.

The Deputy President found that the union had met the requirements for a protected action ballot order. The union had provided evidence of its attempts to reach agreement with the university, and the Deputy President was satisfied that the notification time had been met. The proposed ballot agent, Mr Stephen Donaldson, was also found to be a fit and proper person to conduct the ballot. Mr Donaldson had agreed to be bound by the Privacy Act 1998 with respect to the handling of information relating to the ballot.

The Deputy President therefore made an order appointing Mr Stephen Donaldson as the protected action ballot agent and authorising the union to conduct a protected action ballot. The order also provided for the ballot to be conducted in accordance with the guidelines issued by the Australian Electoral Commission. The university's objection to the proposed industrial action was withdrawn, and the Deputy President determined the matter on the papers without holding a hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established