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.

Printed by authority of the Commonwealth Government Printer

The National Tertiary Education Industry Union filed an application against Monash College Proprietary Ltd, seeking an order for the college to allow its employees to vote on a proposed protected action ballot. The union argued that the college had unlawfully prevented employees from participating in the ballot, which would allow them to potentially take industrial action over a pay dispute. The Fair Work Commission heard the case, with both parties presenting their arguments.

The legal issues before the Commission centred on whether the college had acted lawfully in preventing the employees from participating in the ballot. The union argued that the college had breached section 356 of the Fair Work Act 2009 by obstructing the ballot. The college, on the other hand, contended that the ballot was not properly organised and that there were procedural errors in the union's application.

The Commission found that the college had indeed interfered with the employees' right to vote in the ballot, which was a breach of section 356 of the Fair Work Act. The Commission ordered the college to allow the employees to participate in the ballot, finding that the union had taken reasonable steps to organise the ballot. The college was also ordered to pay the union's costs of the application.

In summary, the Fair Work Commission found in favour of the union, ordering the college to allow its employees to vote in the proposed protected action ballot. The college was also ordered to pay the union's costs of the application. This decision highlights the importance of employers allowing their employees to participate in protected action ballots, and the potential consequences of obstructing such processes.

National Tertiary Education Industry Union v Monash College Proprietary Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established