National Tertiary Education Industry Union v James Cook University Summary

[2022] FWC 2415

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union

James Cook University

(B2022/1351)

VICE PRESIDENT CATANZARITI

SYDNEY, 12 SEPTEMBER 2022

Proposed protected action ballot of employees of James Cook University

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

On 12 September 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Rohan Dennis Hilton of the Applicant declared on 8 September 2022, 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.

An Order has been separately issued in PR745709.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the National Tertiary Education Industry Union against James Cook University for a protected action ballot order. The union sought to organise a ballot of certain employees of the university in relation to proposed protected action. The university did not oppose the application, leading the Commission to decide the matter based on the documents submitted, without a formal hearing. The application was based on the union's assertion that it had been genuinely attempting to reach an agreement with the university, and the statutory declaration from Rohan Dennis Hilton supported this claim.

The key legal issue before the Commission was whether the union had satisfied the statutory requirements to proceed with a ballot. Specifically, it needed to be established that the union had genuinely attempted to negotiate in good faith, and that the notification period for the proposed agreement had been met, as outlined in section 443(1) of the Fair Work Act 2009. The Commission's decision hinged on the evidence presented by the union, particularly the declaration that detailed the bargaining process and the union's efforts to reach an agreement.

The Vice President, Catanzariti, concluded that the union had met the necessary conditions. The declaration and the accompanying documents provided sufficient evidence of the union's good faith efforts to negotiate with the university. Additionally, the union had adhered to the notification requirements stipulated in the Act. Consequently, the Commission was satisfied that the union had fulfilled the prerequisites to proceed with the ballot. An order was issued in accordance with these findings.

The final order allowed the union to proceed with the protected action ballot among the specified employees of James Cook University. This decision was based on the union's demonstration of good faith bargaining efforts and compliance with the notification period as set out in the Act. The Commission's ruling was rendered without the need for a hearing, reflecting the straightforward nature of the application and the lack of opposition from the university.

National Tertiary Education Industry Union v James Cook University

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established