National Tertiary Education Industry Union v Federation University Australia

[2022] FWC 2861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Tertiary Education Industry Union

Federation University Australia

(B2022/1599)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 25 OCTOBER 2022

Proposed protected action ballot of employees of Federation University Australia.

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 Federation University Australia (Respondent).

On 25 October 2022, I conducted a mention and was advised that the Respondent did not object to the application.

On the basis of the material before me, including the declaration of Mr Colin Muir 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 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 PR747177.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union sought a protected action ballot order in relation to certain employees of Federation University Australia. This application was brought under s.437 of the Fair Work Act 2009, and the matter was heard in the Fair Work Commission. The union argued that the process for reaching an agreement with the employer had been followed correctly and that a ballot was necessary to authorise potential industrial action. The union also proposed an alternative ballot agent to the Australian Electoral Commission.

The legal issues before the Deputy President were whether the union had met the notification time requirements, had genuinely tried to reach an agreement with the employer, and whether the proposed ballot agent was fit and proper to conduct the ballot. The Deputy President found that the union had satisfied the notification time requirements and had genuinely attempted to reach an agreement with the employer. The Deputy President also found that the proposed ballot agent, Mr Stephen Donaldson, was a fit and proper person to conduct the ballot.

Accordingly, the Deputy President ordered that Mr Stephen Donaldson be appointed as the protected action ballot agent and granted the union's application for a protected action ballot order. The Deputy President emphasised that the ballot agent must comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot. This decision ensures that the union can proceed with the ballot as a means of authorising potential industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established