National Tertiary Education Industry Union v La Trobe University
[2010] FWA 4130
•1 JUNE 2010
[2010] FWA 4130 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
National Tertiary Education Industry Union
v
La Trobe University
(B2010/72)
COMMISSIONER GOOLEY | MELBOURNE, 1 JUNE 2010 |
Proposed protected action ballot by employees of La Trobe University.
[1] This is an application by the National Tertiary Education Industry Union (NTEU) pursuant to section 437 of the Fair Work Act 2009 (FW Act) for a protected action ballot order.
[2] Ms Gale and Ms O’Meley appeared for the NTEU and Dr Smith, a legal practitioner, was granted permission to appear on behalf of La Trobe University (La Trobe). Neither party gave oral evidence in this matter and neither party objected to the factual statements made from the bar table. Dr Smith tendered a number of documents to support his submissions.
[3] The NTEU and La Trobe are negotiating an agreement to cover employees of La Trobe employed at the La Trobe University International College.
[4] The NTEU is a bargaining representative for its members employed by La Trobe at the La Trobe University International College and it is not disputed that the NTEU is able to make the application. 1 The nominal expiry date of the La Trobe University International College Union Collective Agreement 2007 (the 2007 Agreement) has expired2 and the application for the protected action ballot was served on the employer and the Australian Electoral Commission.3 The application was lodged on 28 May 2010 and was listed for hearing on 31 May 2010.
[5] Fair Work Australia must make a protected action ballot order if it is satisfied that an application has been made under section 437 and each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. 4
[6] Dr Smith submitted that because agreement had been reached between the NTEU and La Trobe University on all the terms of the proposed agreement, I could not be satisfied that the NTEU “is genuinely trying to reach an agreement” at the time the application was made.
The History of the Negotiations
[7] The history of the negotiations is not in dispute. The NTEU initially sought to have the employees employed by La Trobe at the La Trobe International College covered by the La Trobe University Collective Agreement 2009 (the 2009 Agreement) which was approved by Fair Work Australia on 11 December 2009. La Trobe did not agree to the inclusion of the employees at the La Trobe International College in the 2009 Agreement and the parties agreed to negotiate a separate agreement for the La Trobe International College employees. The negotiations occurred in the context that La Trobe had decided to sell the La Trobe International College and tenders had been issued. It had been anticipated that the sale would take effect in early 2010 and that the new agreement would transmit to the new employer in accordance with the provisions of the FW Act.
[8] In December 2009 the parties applied to Fair Work Australia to vary the 2007 Agreement. However that application was dismissed on 11 December 2009. 5 In January 2010 the parties commenced negotiations for a new agreement. Negotiations continued and some issues were resolved.
[9] On 6 May 2010 Ms O’Meley on behalf of the NTEU, in an email to Ms Blackmore the Manager, Employee Relations People & Culture for La Trobe University, proposed some drafting changes and asked for Ms Blackmore’s response. She further advised that she needed to get “Linda’s approval before we can formally sign off.” The reference to Linda is a reference to Linda Gale. 6
[10] On the same day Ms Gale sent an email to Ms Blackmore in which she stated that the “NTEU is willing to agree to the modifications proposed below” and advised that:
“A further issue has arisen as a result of the University’s announcement that you do not now expect the transmission to occur until September. When we originally negotiated an agreement including truncated salary increases, it was on the expectation that the transmission was likely to occur early in 2010. When the expected transmission was moved back to mid year, the fact that the final increase embodied in the LTUIC agreement was mid-2010 had some logic, since 12 months out from that the transitional agreement would cease to operate and LTUIC staff would be free to negotiate further wage increases with their new employer. However the new September timeline means that unless the 2011 increase is also reflected in the LTUIC agreement, LTUIC staff will necessarily fall behind their La Trobe colleagues in mid 2011 as they will remain bound by the La Trobe negotiated transitional instrument until at the earliest September. I am sorry to raise this so late in the day, but the announcement of the delayed transmission date has only just been made, and on this basis, we now seek the inclusion of the 2011 pay increases in the LTUIC Agreement”. 7
[11] Ms Blackmore responded on 9 May 2009 and advised that La Trobe did not agree to Ms Gale’s proposal. She stated:
“Your proposal to include additional salary increases in the agreement is misconceived and the University does not agree to it.
Last year’s negotiations provided for the expiry of the new agreement on 30 June 2010, and for the same pay increases as applied for staff at the rest of the University through to that date. This is reflected in the pay increases in cl 1.2……The staff in the rest of the University don’t get another pay increase before July 2011. It is not appropriate that the LTUIC staff should get a 2011 increase in an agreement where they effectively already have parity right up to 30 June 2011, notwithstanding the proposed nominal expiry date of 30 June 2010. They don’t fall behind at all. We are willing to extend the NED to 31 August 2010 if this would assist you.” 8
[12] Ms O’Meley advised on 11 May 2010 that the NTEU was considering its response and sought to have a meeting to discuss “any amendments that will need to be made in light of the BOOT/modernised award.” 9
[13] On 18 May 2010, Ms Blackmore responded suggesting that the NTEU had misunderstood the transmission provisions in the FW Act and had confused the current provisions with the provisions that existed under the predecessor act. Ms Blackmore advised that they were not in “a position yet to meet in detail on the BOOT review (and I’m not on campus tomorrow). We are determining the best way of undertaking the review. How is the NTEU planning to approach it.” 10
[14] On 19 May 2010 Ms O’Meley replied advising that she needed to discuss the issues of the expiry date and pay rises “with Linda on Friday and let you know our responses to your notes below.” She further advised that there was a need to “check the agreement against the BOOT and mutually agree on amendments.” 11
[15] On 19 May 2010 Ms Blackmore responded about the process to be used to do the BOOT analysis and on 20 May 2010 Ms O’Meley replied. 12
[16] On 31 May 2010 Ms Blackmore wrote to the NTEU seeking an urgent response to their email of 18 May 2010. La Trobe advised that it opposed the application lodged by the NTEU for a protected action ballot because “from the University’s perspective we have reached agreement with the NTEU on the terms of the LTUIC UCA.” 13 On 31 May 2010 by email, Ms Gale advised that “the NTEU does not agree that we have reached final agreement in this matter. Specifically the issue of wages, expiry date and further changes necessary to comply with the Better Off Overall Test remain outstanding, and the tentative agreement reached on other matters has always been without prejudice and subject to final settlement of the total package.”14
Conclusion
[17] I have reproduced in detail the exchanges between the parties because, despite Dr Smith’s submissions that the terms of the agreement were finalised, it is clear from the documents, that at 20 May 2010 this was not the case.
[18] As late as 9 May 2010, Ms Blackmore was proposing a change to the expiry date as a means to overcome the issue raised by the NTEU on 6 May 2010. Further, the parties anticipated changes needed to be made arising from the BOOT. Until La Trobe received the NTEU’s application for a protected action ballot La Trobe did not in any of its exchanges with the NTEU suggest that an agreement had already been reached between it and the NTEU.
[19] The NTEU’s submissions were, that it was always understood between the parties, that until the entire agreement was agreed, there was no agreement: in effect all negotiations were on a without prejudice basis. Dr Smith suggested that until an email was sent by the NTEU on 31 March 2010 which was headed “without prejudice final proposals” there was no suggestion that the negotiations were on a without prejudice basis.
[20] I do not need to resolve this issue as it is clear on the face of the documents tendered by La Trobe and on the basis of the NTEU submissions, that at the time I am required to determine if the application for a protected action ballot should be granted, final agreement had not been reached. It is clear that all the terms of the agreement had not been finalised. Further as submitted by Ms Gale, the agreement was not finalised until it had been approved by the NTEU national office and La Trobe knew that no agreement was finalised until that occurred.
[21] La Trobe raised no other basis on which I should refuse to make the orders sought.
[22] I am required to be satisfied that the NTEU has been and is genuinely trying to reach agreement with La Trobe. On the basis of the submissions I find that the NTEU has been and is genuinely trying to reach agreement. I do not find that raising, for the first time on 6 May 2010, the additional pay rise means that the NTEU is not trying to genuinely reach an agreement. The NTEU only raised this issue, having been advised by La Trobe, that the date for the sale was now latter than the parties had understood. Even if I accept that the NTEU misunderstood the transmission provisions in the FW Act there was no suggestion that this misunderstanding impugned the genuineness of the NTEU negotiating position.
[23] I therefore am satisfied that the requirements of section 443 have been complied with and I will therefore make the protected action ballot order [PR997651].
COMMISSIONER
Appearances:
L Gale for the National Tertiary Education Industry Union.
G Smith of Counsel for La Trobe University International College.
Hearing details:
2010.
Melbourne.
May 31.
1 Section 437
2 Section 438
3 Section 439
4 Section 443
5 Exhibit LU 3
6 Exhibit LU 1
7 ibid
8 ibid
9 ibid
10 Exhibit LU 4
11 Ibid
12 Exhibit LU 5
13 Exhibit LU 6
14 Exhibit LU 7
Printed by authority of the Commonwealth Government Printer
<Price code C, PR997653>
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