National Tertiary Education Industry Union v La Trobe University

[2023] FWC 849

[2023] FWC 849

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

La Trobe University

(B2023/326)

DEPUTY PRESIDENT CLANCY MELBOURNE, 11 APRIL 2023

Proposed protected action ballot of employees of La Trobe University

1. 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 La Trobe University (Respondent).

1. There is no dispute between the parties on the question of whether the Applicant has been genuinely trying to reach agreement. There was correspondence regarding a dispute about the time period for the provision of employee information to the proposed Ballot Agent and the manner in which it would be transmitted. I determined a Mention should be conducted, during which I discussed these matters and the timing of the proposed ballot. As a result of the Mention, the disputed issues were resolved and the Applicant subsequently provided email correspondence confirming a preference for the proposed ballot to close at 12pm Wednesday, 26 April 2023.  

1. Therefore, with the parties having resolved the various matters raised, I have proceeded to determine the matter on the papers without holding a hearing.  

1. On the basis of the material before me, including the declaration of 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.

1. The Applicant has sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Mr Stephen Donaldson (Business Owner of TrueVote Pty Ltd). Mr Donaldson has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent, and that he has relevant experience in conducting protected action ballots. I am satisfied that Mr Donaldson is a fit and proper person to conduct the ballot. I am also satisfied that Mr Donaldson and TrueVote Pty Ltd are 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 Mr Donaldson and TrueVote Pty Ltd are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot. 

1. Therefore I appoint Mr Stephen Donaldson as the protected action ballot agent. 

1. An order has been separately issued in PR760964.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR760963>