National Tertiary Education Industry Union v Monash College Proprietary Ltd

[2015] FWC 1571

[2015] FWC 1571

FAIR WORK COMMISSION

DECISION

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

National Tertiary Education Industry Union
v
Monash College Proprietary Ltd
(B2015/42)

DEPUTY PRESIDENT SMITH MELBOURNE, 10 MARCH 2015

Proposed protected action ballot of employees of Monash College Proprietary Ltd.

[1] This is an application for a protected action ballot order by the National Tertiary Education Industry Union (NTEU) on behalf of their members employed by Monash College Proprietary Ltd (Monash College) (other than those employed as teachers of the Monash University Foundation Year or employed as Nominated Employees). The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[2] The applicant seeks to ballot employees of Monash College who are members of the NTEU and who would be subject to the proposed enterprise agreement.

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

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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 FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA 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.

[4] The next matter to which attention must be given is whether or not the applicant is genuinely trying to reach agreement with the employer of the employees who are to be balloted. In this regard, I have relied upon Attachment B of the NTEU’s application which provides information about matters relevant to s.443 of the Act. Further, as there is no evidence to suggest otherwise, I am satisfied that the parties are genuinely trying to reach agreement.

[5] Having decided 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

Written submissions:

J. Coleman, Monash College Proprietary Ltd, 3 March 2015.

S. Rosenthal, National Tertiary Education Industry Union, 4 March 2015.

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