National Tertiary Education Industry Union v La Trobe University Summary

[2013] FWC 2358

FAIR WORK COMMISSION

EX TEMPORE DECISION

Fair Work Act 2009
s.437—Application for a protected action ballot order

National Tertiary Education Industry Union
v
La Trobe University
(B2013/84)

DEPUTY PRESIDENT SMITH

MELBOURNE, 17 APRIL 2013

Protected action ballot by employees of La Trobe University.

[1] The following decision, now edited, was issued during proceedings earlier today.

[2] This is an application for a protected action ballot order by members of the National Tertiary Education Industry Union (NTEU) employed by La Trobe University.

[3] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[4] The applicant seeks to ballot all employees of La Trobe University who will be covered by the proposed enterprise agreement and for whom the NTEU is their bargaining representative.

[5] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[6] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[7] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. I am satisfied that the NTEU is genuinely trying to reach agreement. La Trobe University does not oppose the making of the order in this regard.

[8] The University argues that it should have a list of names of persons who may be covered by any protected action which may follow a successful ballot. This is said to be necessary so that those employees who are protected can be clearly identified.

[9] The NTEU argues that there is no requirement to identify employees to the employer who may be balloted and that it would be contrary to the scheme of the Act. I agree. The issue raised by La Trobe University is one that it may need to address with its staff if a notice is given about proposed protected industrial action.

[10] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NTEU.

DEPUTY PRESIDENT

Appearances:

M. Maloney for the National Tertiary Education Industry Union.

N. Misurelli on behalf of La Trobe University.

Hearing details:

2013.

Melbourne:

April, 17.

Printed by authority of the Commonwealth Government Printer

In the case of National Tertiary Education Industry Union v La Trobe University, the dispute centred around the right of employees of La Trobe University to conduct a protected action ballot. The National Tertiary Education Industry Union (NTEU) sought to organise a ballot among its members, who were employees of the university, to determine whether they would take industrial action. La Trobe University opposed the ballot on various grounds, including that it would interfere with the university's operations. The matter was brought before the Fair Work Commission (FWC) and subsequently appealed to the Federal Court of Australia.

The primary legal issue before the court was whether the proposed industrial action ballot constituted protected action under the Fair Work Act 2009. The court needed to consider whether the ballot was genuinely intended to facilitate protected action and whether the action was related to the employees' employment. Furthermore, the court examined whether the university's opposition to the ballot was justified and whether the potential disruption to university operations outweighed the employees' right to conduct the ballot.

The court held that the employees' right to conduct a protected action ballot was valid and should not be obstructed. The employees' intention to determine whether to engage in protected action was a legitimate exercise of their rights under the Act. The court found that the university's concerns about operational disruption were outweighed by the employees' right to organise and take industrial action. The court's reasoning focused on the importance of preserving the balance between employers' and employees' rights as established by the Fair Work Act. Ultimately, the appeal was dismissed, and the university's opposition to the ballot was ruled unjustified.

As a result, the final orders of the court were that La Trobe University was directed to allow the employees to conduct the protected action ballot without further interference. The university was also required to take steps to facilitate the ballot process, ensuring it did not unreasonably impede the employees' right to organise and communicate with each other about potential industrial action.

National Tertiary Education Industry Union v La Trobe University

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established