National Tertiary Education Industry Union v Deakin University Summary

[2023] FWC 551

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

Deakin University

(B2023/211)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 MARCH 2023

Proposed protected action ballot of employees of Deakin 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 Deakin University (Respondent).

On 6 March 2023, my Associate was advised that the Respondent 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 Mr Rhidian Huw Thomas of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 (AEC) 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 PR760072

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has granted an application by the National Tertiary Education Industry Union for an order allowing a protected action ballot for certain employees of Deakin University. The application was made under section 437 of the Fair Work Act 2009, and the Commission determined the matter on the papers without holding a hearing due to the Respondent not objecting. The Union sought to conduct the ballot through an agent other than the Australian Electoral Commission, and the Commission was satisfied that the proposed agent, Mr Stephen Donaldson, was a fit and proper person to conduct the ballot.

The legal issues the Commission was required to decide were whether the Union had genuinely been trying to reach agreement with the Respondent and whether the requirements in section 443(1) of the Act had been met. The Commission was satisfied that the Union had been genuinely trying to reach agreement and that the requirements had been met. The Commission was also satisfied that Mr Donaldson was capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously.

The Commission appointed Mr Donaldson as the protected action ballot agent and directed that he comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot. Mr Donaldson has agreed to be the ballot agent and is bound to comply with the Privacy Act. The Union may now proceed with the ballot under the supervision of Mr Donaldson as the ballot agent. The Commission has also issued a separate order in PR760072DEPUTY PRESIDENT.

National Tertiary Education Industry Union v Deakin University

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established