National Tertiary Education Industry Union v Monash University

[2013] FWC 5256

[2013] FWC 5256

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.604—Appeal of decision

National Tertiary Education Industry Union
v
Monash University
(C2013/5357)

VICE PRESIDENT CATANZARITI SYDNEY, 1 AUGUST 2013

Application for stay of decision [[2013] FWC 5124] and Order PR539479 of Vice President Lawler made on 27 July 2013 in matter number B2013/1050. Stay granted.

[1] On 27 July 2013, Vice President Lawler issued an order 1 (Order) and the following day, on 28 July 2013, a decision2 (Decision) in matter B2013/1050, an application pursuant to s.424 of the Fair Work Act 2009 (Act) filed by Monash University (Monash). Although it is not necessary for me to go into the details of that application, I will note that the application concerned the protected industrial action, which included the “Results Ban”, being undertaken by members of the National Tertiary Education Industry Union (NTEU) at Monash.

[2] With respect to that application, Vice President Lawler made the following findings:

“[60]In relation to past effects, even adopting this approach, for the reasons concluding at paragraph [46] above I find that the Results Ban did have effects that met the description in s.424(1)(c) in that it did threaten to endanger student welfare in a significant way during at least a portion of the period to 15 July 2013.

[61] Given the way in which the exemptions regime is now operating and the way in which it will likely operate in the future, I do not consider that the present and continuing threats of endangerment to health or welfare of the remaining group of students to be sufficiently large to attract the description “significant”. The exemptions regime, notwithstanding its minor continuing defects, is adequate in a practical, real-world sense to abate the threat of endangerment on account of the Results Ban to a level that falls below the threshold required by s.424(1).

[62] I am satisfied that any student who is suffering heightened stress or anxiety or genuine hardship because they have not received their marks will receive a specific exemption. The risk in relation to hypothesised students who do not engage with the process, or who do not have ready access to the internet, exists theoretically but is, I think, too remote or speculative to come within the meaning intended by s.424(1)(c).

[63] In relation to present and future effects, I find that the Results Ban is not threatening to endanger the health or welfare of part of the population (constituted by the students who have not received results as a consequence of the Results Ban) within the proper meaning of s.424(1)(c).

[64]Nevertheless, the finding in paragraph [60] means that I “must”
make an order suspending or terminating protected industrial action. However, I have concluded that endangerment of health or welfare of students in the relevant sense is not presently threatened or, on the balance of probabilities, threatened in the relevant future. It seems to me that where the requirement in s.424(1)(c) is only satisfied in the past, but not presently or prospectively, the proper exercise of discretion may call only for a nominal suspension. Section 424 has a protective purpose. That protective purpose is not served when the risk calling for protection has abated. The important Convention rights that underpin the statutory right to take protected action ought not be curtailed when relevant risk is no longer threatened. I consider it unfair to the NTEU to deprive it of its most effective form or protected industrial action, and its right to take other protected industrial action authorised in the ballot to resolve what appears to be an impasse in protracted enterprise bargaining, when there is no present or continuing threat of the relevant kind. In the exercise of my discretion I ordered a suspension of protected industrial action for a nominal period of one hour from midnight on 27 July 2013, that is for a period when it will have no practical impact on the Results Ban.” 3

[3] Accordingly, Vice President Lawler made the Order in the following terms:

“The Fair Work Commission orders:

1. Protected industrial action being taken by the National Tertiary Education Industrial Union and its members at Monash University in reliance on the protected action ballot conducted pursuant to order PR535791 be suspended for a period of 1 hour commencing at midnight on 27 July 2013.”

[4] On 29 July 2013, the NTEU filed an appeal against the Decision and the Order. Although the notice of appeal did not seek a stay of the Order, on 30 July 2013, the NTEU wrote to the Fair Work Commission (Commission) seeking that a stay application hearing be listed as a matter of urgency and subsequently filed an amended notice of appeal. That prompt, and the urgency, was caused by an application filed by Monash on 29 July 2013 with the Commission pursuant to s.418 of the Act.

[5] Needless to say, Monash opposed the stay application and the matter was heard by me, on an urgent basis, on 31 July 2013.

Applicable Principles and General Approach

[6] There was no dispute between the parties as to the principles applicable to the determination of the NTEU’s stay application. They are as stated in Kellow-Falkiner Motors Pty Ltd v Edghill 4,in which the Full Bench approved the following statement of principle:

“[5] In determining whether to grant a stay application the Commission must be satisfied that there is an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal. In addition, the balance of convenience must weigh in favour of the order subject to appeal being stayed. Each of the two elements referred to must be established before a stay order will be granted.

[6] The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.” 5

Submissions

[7] The NTEU summarised the grounds of the appeal as follows:

• the Vice President erred in the construction and application of s.424 of the Act;



• the Vice President erred in the construction of the phrase “population or of part of it” in s.424(1) of the Act; and/or



• the Vice President erred by denying procedural fairness to the appellant.

[8] On the issue of whether a stay should be granted, the NTEU submitted that:

• there is an arguable case with real prospects of success on the question of permission to appeal being granted as there are questions of procedural fairness affecting the Commission’s jurisdiction and there are questions as to the proper construction and application of the Act;



• there is an arguable case with real prospects of success on the substantial merits of the case; and



• the balance of convenience favours the grant of a stay as the status quo should be maintained pending the determination of the appeal and in circumstances where there is serious doubt as to the proper application of the Act and where there is a serious issue that the Order was made in denial of procedural fairness.

[9] In opposing the stay application, Monash submitted that:

• the Order is not amenable to a stay as the Order itself was complete at the time the stay application was made;



• in the absence of a challenge to the finding of fact, the Commission should not be satisfied that there is an arguable case with reasonable prospects of success in respect of both the question of leave to appeal and the substantive merits of the appeal; and



• the balance of convenience weighs heavily against the grant of a stay as Monash would be deprived of the entire benefit of the Order, even if the appeal is subsequently dismissed in its entirety, and there are a number of students who were very much affected, and continue to be affected, by the “Result Bans” that the NTEU has sought to put in place. Furthermore, the only prejudice to the NTEU, in refusing to grant the stay, would be the requirement for the NTEU to give 3 working days’ notice to Monash of the industrial action which is to be undertaken.

Consideration

[10] I accept the NTEU’s contention that the Decision raises an important question of whether, in assessing the protected industrial action that “is being engaged in, or is threatened, impending or probable” for the purposes of s.424 of the Act, the Commission is to have regard to the current industrial action only, and not an earlier expression of the industrial action. I also accept that the Decision raises a question regarding the proper construction of the phrase “the population or a part of it”. I am satisfied that the amended notice of appeal raises an arguable case, with some reasonable prospect of success.

[11] I am persuaded by the NTEU’s submission that there is an arguable case with reasonable prospects of success on the question of permission to appeal being granted because of the above questions as to the proper construction and application of the Act, as well as questions of procedural fairness.

[12] In light of the above, I find that, as submitted by the NTEU, grounds 1, 2, 3, 6 and 7 of the amended notice of appeal raise an arguable case, with some reasonable prospect of success, in respect of both the question of leave to appeal and the substantive merits of the appeal.

[13] With respect to the issue of whether the balance of convenience favours the granting of the stay, although I accept Monash’s submission that there are a number of students who were affected, and continue to be affected, by the “Result Bans”, I am satisfied that refusing the stay would significantly prejudice the NTEU by materially impacting the effect of the industrial action being undertaken by its members. I agree with Mr Niall SC that there is a compelling case for the maintenance of status quo pending the hearing and determination of the appeal. I therefore find that the balance of convenience favours the granting of the order.

[14] Having considered the authority on the exercise of the Commission’s discretion to grant a stay, I find that in all the circumstances a stay order is appropriate.

Conclusion

[15] The Order is stayed pending the hearing and determination of NTEU’s appeal or until a further order of the Commission.

[16] Given the nature of the Order, it is appropriate for the stay order to operate from 27 July 2013.

VICE PRESIDENT

Appearances:

R Niall of Senior Counsel and C Dowling of Counsel for the National Tertiary Education Industry Union.

C O’Grady of Counsel for Monash University.

Hearing details:

2013.

Sydney and Melbourne (video hearing):

July 31.

 1   PR539479.

 2   [2013] FWC 5124.

 3   [2013] FWC 5124.

 4   Print S4216.

 5   Print S4216, [4].

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