National Tertiary Education Industry Union v Monash University

[2013] FWC 2364

[2013] FWC 2364

FAIR WORK COMMISSION

DECISION

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

National Tertiary Education Industry Union
v
Monash University
(B2013/88)

DEPUTY PRESIDENT SMITH MELBOURNE, 26 APRIL 2013

Protected action ballot by employees of Monash University.

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

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

[3] The matter was heard on 17 April and I adjourned the matter to consider the arguments put. The parties were invited to make further submissions, if required. Mr Rosenthal, acting on behalf of the NTEU wrote to the Fair Work Commission shortly after the hearing to advise that the NTEU would not be making any further submissions.

[4] The applicant seeks to ballot all employees of Monash 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. In this matter, Monash University, neither opposes or consents to the application but raises two matters for consideration by the Commission going to its jurisdiction. The first is whether or not the NTEU is genuinely trying to reach agreement and the second is whether or not the questions are clear. The NTEU made one adjustment to the questions to be asked.

[8] In turning to the submission that the questions were ambiguous and unclear the views expressed in John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) [2010 FWAFB 526] are apposite:

“If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.”

[9] Finally I turn to consider the submission that the NTEU may not have been, or is, genuinely not seeking to reach agreement [s.443(1)(b)]. This is a jurisdictional prerequisite to the grant of the order. It is readily conceded by Monash that parties do not have to bargain to impasse but it is submitted that some items have not been addressed in the bargaining.

[10] In this connection my attention was drawn to the decision of a Full Bench in Total Marine Services Pty Ltd v Maritime Union of Australia:

“We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.” [(2009) FWAFB 368 at paragraph 32]

[11] The NTEU expressed surprise at the submission given the 70 hours of negotiation over 17 meetings with a further meeting scheduled for the next day. It submitted that both parties had the need to respond to the other, but that did not mean that they were not genuinely trying to reach agreement.

[12] With respect I agree with the observations of the Full Bench that it is neither appropriate nor possible to establish rigid rules in relation to an assessment of this matter. As a member of the panel dealing with the industry of higher education I am broadly familiar with the bargaining practices in the sector and I am satisfied that the NTEU is not engaged in surface bargaining with the aim of simply accessing the protected industrial action provision of the Act. It is not unusual for the parties to prioritise bargaining so that confidence can be established between the bargainers before very difficult issues are given fuller consideration. This does not mean that they are not genuinely trying to reach agreement it is simply a recognition of the complexities of bargaining and the significant issues which may need to be addressed.

[13] I am satisfied that the NTEU is genuinely trying to reach agreement.

[14] 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:

S. Rosenthal with M. Maloney for the National Tertiary Education Industry Union.

Dr. G. Smith with A. Picouleau on behalf of Monash University.

Hearing details:

2013.

Melbourne:

April, 17.

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