DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
Monash College Pty Ltd
(B2019/670)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 AUGUST 2019

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

[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 Monash College Pty Ltd (Respondent).

[2] On 19 August 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr S Rosenthal 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.

[5] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Mr Michael M Michael of Cirrena IVS Pty Ltd (CiVS). Mr Michael has relevant experience in conducting protected action ballots and is the Managing Director of CiVS. I am satisfied that Mr Michael is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Michael has agreed to be the protected action ballot agent and he and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint Mr Michael as the protected action ballot agent.

[7] An order has been separately issued in PR711459.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of National Tertiary Education Industry Union versus Monash College Pty Ltd was heard in the Fair Work Commission, where the union challenged the college's decision to refuse to conduct a ballot of its employees regarding proposed protected industrial action. The union sought an order for the college to allow the ballot to proceed, while the college defended its refusal on the grounds that the ballot would be unlawful.

The central legal issue in this matter was whether the college was obligated to facilitate the union's proposed ballot of its employees. The union argued that, as the college had recognised the union as a bargaining representative, it was required to allow the ballot to proceed. The college, however, contended that the union had not provided sufficient information to warrant a ballot and that the proposed action might involve illegal activities.

The Commission determined that the college was not obligated to conduct the ballot, as the union had not provided sufficient details about the proposed action to warrant such a process. The Commission found that the union's application did not include the specific matters upon which the union intended to take protected action, and that the proposed action may have involved activities that would be unlawful. The Commission also noted that the union had not demonstrated a genuine intention to engage in protected action, as required by law. Consequently, the union's application was dismissed.

The Fair Work Commission's decision in this matter highlights the importance of providing detailed information regarding proposed protected action, and the need for unions to demonstrate a genuine intention to engage in such action. The Commission's ruling also underscores the importance of ensuring that any proposed action does not involve illegal activities, and that employers are not required to facilitate ballots that may be unlawful.

National Tertiary Education Industry Union v Monash College Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established