National Tertiary Education Industry Union v Murdoch University

[2016] FWC 6831

[2016] FWC 6831

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
Murdoch University
(B2016/971)

COMMISSIONER WILLIAMS PERTH, 23 SEPTEMBER 2016

Proposed protected action ballot of employees of Murdoch University.

[1] This decision concerns an application made under section 437 of the Fair Work Act 2009 (the Act) by the National Tertiary Education Industry Union (the NTEIU) for a protected action ballot order. The respondent is Murdoch University (Murdoch or the University).

[2] A prior application involving the same parties (B2016/947) was heard on Friday 2 September 2016. At that hearing the parties were advised that the Commission was satisfied the ballot order should be made however the matter was adjourned for the parties to privately consult concerning the form of the ballot order in light of a number of objections Murdoch had raised including concern over the wording of some questions and their view there were exceptional circumstances warranting a greater period of notice before some forms of industrial action is taken.

[3] On Tuesday 6 September 2016, without explanation, the NTEIU discontinued the prior application and less than an hour later filed this fresh application (B2016/971) the subject of this decision.

[4] The current application differs from the prior application in that four of the seven questions have been reworded and a different ballot agent is proposed.

[5] The questions the NTEIU seeks to put to the employees who are to be balloted are set out below:

Question 1

An unlimited number of stoppages of work, including consecutive stoppages of work between 10 minutes and 24 hours in duration?

Question 2

Ban or partial bans on:

a) sending emails without a statement in support of the Union’s bargaining claims

b) recording telephone voicemail messages without statements in support of the Union’s bargaining claims; and

c) sending automatic email replies without a statement in support of the Union’s bargaining claims?

Question 3

Bans or partial bans on the development, promotion, administration and delivery of offshore programs?

Question 4

Bans or partial bans on the use of phone and email systems including diversion of phone calls?

Question 5

A ban on overtime, or working beyond ordinary hours, or accruing flextime hours, or working outside of 9am-5pm weekdays?

Question 6

Bans or partial bans on participating in:

a) Dinners or Fundraisers hosted by Murdoch University;

b) Graduation Ceremonies;

c) Murdoch University Promotional events;

d) Conferences, presentations or speaking events hosted by Murdoch University?

Question 7

Indefinite refusal to invigilate exams, tests and in-class assessments?

[6] Murdoch in response have raised one concern as to whether or not the NTEIU has been genuinely trying to reach an agreement, does not object to Cirrena Pty Ltd being the protected action ballot agent, object to some of the questions to be put to the employees and finally submits that as provided for in section 443 (5) of the Act there are exceptional circumstances warranting a longer period of notice being given before some forms of the proposed industrial action is taken.

[7] At the hearing of this matter the Commission agreed that the evidence accepted and submissions given in the prior application would stand as evidence and submissions for the purposes of this application. In addition the parties have filed additional witness statements for this application and made further submissions.

[8] The NTEIU provided a second witness statement from Dr Anne Price (Dr Price) the President of the Murdoch University branch of the NTEIU. Murdoch did not cross-examine Dr Price at the hearing of the prior application but did so at the hearing of this application. The NTEIU also tendered a witness statement from Mr Gregory Roy Mitchell the Managing Director of Cirrena Pty Ltd. He was not cross-examined by Murdoch. Murdoch tendered a second statement from Mr Robert McPherson (Mr McPherson). Mr McPherson is an Industrial Relations Practitioner advising Murdoch on the renegotiation of its enterprise agreement. He was cross-examined by the NTEIU at the hearing of the prior application but was not cross-examined at the hearing of this application.

The evidence

[9] Considering the evidence I find as follows.

Mr Mitchell

[10] The uncontested evidence of Mr Mitchell as to the business activities of Cirrena Pty Ltd, its recognition of its obligations as a ballot agent and its capacity to discharge those is accepted.

Dr Price

[11] I generally accept the evidence of Dr Price. Dr Price was cross-examined with respect to one item on the NTEIU’s log of claims that was provided to Murdoch on 1 April 2016. This item reads as follows:

“9. Misconduct
That the agreement provide the disciplinary action not be harsh or unreasonable.”

[12] Her evidence was that the particular items in the log of claims would be fleshed out with detailed drafting as the negotiations evolved.

[13] Her evidence was that item “9 Misconduct” in the log of claims would apply to all staff that are employed under the proposed agreement. Her evidence was that termination of employment would be disciplinary action. 1 In answer to questions as to whether this item would apply to employees irrespective of how long they had been employed Dr Price was uncertain. Her evidence was that without the details in front of her she could not recall exactly how they had drafted these things.2

[14] Dr Price also gave evidence as to whether or not she viewed Murdoch’s Open Universities programme as an onshore or an offshore program. In the context of questioning about an example where a student in Victoria was participating in the Open Universities program and accessing content designed, created and administered out of Murdoch in Perth she was uncertain as to whether the program would be viewed as an onshore or an offshore program. Her evidence however was that programs in Dubai or Singapore were clearly offshore programs.

[15] Dr Price had also looked through policies of Murdoch and found the University’s Email and Electronic Messaging Guidelines. It was her evidence that there was an expectation that email footers were drafted in a particular way including having the Murdoch logo and contact details of the sender.

Mr McPherson

[16] Mr McPherson’s evidence was that the employees who would be covered by the proposed agreement include nearly all the employees of Murdoch except for certain executive staff. Murdoch currently has 575 fixed term and continuous academic staff, 828 casual academic staff, 919 fixed term and continuous professional staff and 1060 casual professional staff.

[17] The proposed forms of industrial action would impact on the daily operations of Murdoch. The key mitigation steps in many cases would be to attempt to source replacement staff however assuming that such people are available, which involves numerous challenges, there would typically still be delays, additional resources required for recruitment, selection and training, and time required to bring on board the new persons.

[18] The evidence is that in terms of delivery of services to students Murdoch operates on a fixed timetable of courses and other events and disruption to this timetable can be difficult if not impossible to make up. The evidence is that if a particular intensive or full-time course is not completed on time or examinations do not occur on time, a student may miss a critical date and will not be able to move onto the next part of their course or may not be able to graduate on time with flow on effects for them.

[19] The evidence of Mr MacPherson which was not shaken in cross-examination is that there are a number of instances in which three days would not give Murdoch enough time to respond to the industrial action with likely adverse consequences for students, staff and other third parties.

[20] Examples of this include the fact that Murdoch has a number of employees trained in first aid and workplace safety or who are employed to perform security functions. If these employees were to stop work the safety of students, staff or visitors to the campus may be impacted. If multiple safety employees stopped work Murdoch would need to source sufficient replacement staff with appropriate safety qualifications and knowledge of the University systems.

[21] There are a group of security staff who are responsible for managing the University’s property, covering approximately 227 hectares, and security and responding to emergency calls and events on the campus. They are trained in the specific response mechanisms and need to have knowledge of the facilities on the campus in order to respond to emergency call outs. Murdoch security employees work either between 8:00 a.m. and 4:00 p.m. or 4:00 p.m. to midnight with contractors working from midnight to 8:00 a.m. The site induction and training alone for a new security employee takes between five and seven days to complete. Mr MacPherson’s evidence was that it is not possible to ensure there are minimum levels of suitably qualified and trained replacement security staff with only three days notice of a stoppage of work.

[22] The evidence is stoppages of work by security staff could jeopardise the safety of students attending the Murdoch campus and the hundreds of students living on campus.

[23] Separately the evidence is that students and staff in some disciplines are working with substances, processes and machines that can pose risks to health and safety unless they are properly managed. Examples include laboratories with dangerous substances and equipment which are used in experiments and research. Qualified staff are required to supervise or support these types of activities to ensure that students or visitors are not exposed to risks to their health and safety.

[24] In addition the evidence is that supervising staff in some areas of the University are required to hold particular qualifications, for example when supervising students learning surgical techniques in the animal hospital. Proper supervision by qualified veterinary surgeons is required to avoid harm in this environment to students and animals undergoing operations and to ensure there are no hazards resulting from infection or contamination.

[25] Similarly in the engineering and information technology schools students are handling potentially dangerous chemicals or electronic equipment and must be supervised by persons with the requisite qualifications and experience.

[26] If employees providing supervision of students in such potentially hazardous areas within the University do stop work this is likely to result in all activity in these areas ceasing until appropriately qualified substitute staff can be identified and appointed. Because of the requirement for such replacement staff to hold the particular qualifications in the relevant discipline often at a postgraduate level finding such replacement staff will be practically very difficult and it is not something that is likely to be achieved within three days of being notified of a stoppage of work.

[27] Mr McPherson’s evidence also was that there are instances at Murdoch where experiments are being undertaken in laboratories which run over periods of several months and which have involved additional months of preparation. There is the potential that all of this effort could be lost if employees responsible for looking after such experiments stopped work. Such experiments form part of the course work for some students and consequently any industrial action in these areas has the potential to cause a disproportionately large amount of damage to the interests of these students with many months of effort lost which may jeopardise their opportunity to complete their degrees.

[28] Mr McPherson’s evidence included further examples of disproportionate damage being done to the interests of some students from industrial action of even a short duration. This potential arises in instances where students are undertaking intensive courses over a short duration for example one week. Students sometimes travel from interstate or even overseas to attend such Murdoch courses and often pay high fees for their delivery. An interruption of a one day stoppage of work during such a five day intensive course will result in the student missing out on 20% of the proposed content, meaning they may not have satisfied the requirements for completion of a qualification. This cannot necessarily be easily remedied by another day being added to the end of the course due to staffing availability and other arrangements and their own personal circumstances. Given the specialised qualifications of those delivering such courses it is unlikely to be possible to find a replacement employee to substitute for the staff member taking industrial action within a three day period.

[29] Separately Mr McPherson’s evidence is that for a number of courses students complete work placements which involve Murdoch arranging for students supervised by Murdoch staff to provide services through external organisations such as clinics, community health services and community legal services. These arrangements are usually put in place many months in advance. If Murdoch employees chose to stop work this could prevent these work placements going ahead which would impact on not only the students but also the external organisations and the members of the public accessing their services. In some cases members the client members of the public may have waited weeks or months for an appointment and are in precarious situations. Again Mr McPherson’s evidence is it is unlikely that within a three day period Murdoch would be able to obtain suitably qualified replacement staff to allow these arrangements to continue.

[30] Murdoch has a veterinary school which includes an animal farm for teaching, an animal hospital which operates 24 hours a day 7 days a week and research laboratories. These facilities all involve continuous operations and if staff stop work this would put the health and well-being of the animals at risk. The qualifications of some of the staff working in these operations is highly specialised and it would be very difficult to replace them with only three days notice.

[31] The evidence is that supervision of assessment unsurprisingly is a formal requirement for student education. A failure to invigilate assessment may result in students being unable to complete the necessary course requirements. In some instances the invigilators do not require any specific expertise or qualifications and it would be possible to source replacement staff however in other instances exam invigilators are required to test particular specialised knowledge and themselves are required to have particular levels of qualification and experience in order to assess the student’s performance. The evidence is it is not possible for replacement staff in some instances to be used without those qualifications, in order for students to get credit for their assessment. Accordingly to enable students to continue with their assessment Murdoch would need to recruit suitably qualified replacement employees who are available to cover the periods of any stoppages or bans and it is unlikely that this could be arranged within a three-day period.

[32] I note that the diversity of the roles of the staff whom would be balloted can be gleaned from the terms of the current Murdoch University Enterprise Agreement 2014 [AE407853] and include teaching and research academics, lecturers and tutors, cleaners, labourers, clerks, security patrol officers, tradepersons, technical assistants, librarians, computer systems offices, faculty managers, scientific officers and administrators amongst others.

The legislation

[33] The relevant sections of the legislation are sections 19, 443 and 444 of the Act which are set out below.

“19 Meaning of industrial action

(1) Industrial action means action of any of the following kinds:

(a) the performance of work by an employee in a manner different from that in which it is customarily performed, or the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of the work;

(b) a ban, limitation or restriction on the performance of work by an employee or on the acceptance of or offering for work by an employee;

(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;

(d) the lockout of employees from their employment by the employer of the employees.

(2) However, industrial action does not include the following:

(a) action by employees that is authorised or agreed to by the employer of the employees;

(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;

(c) action by an employee if:

(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and

(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.

(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.

Note: In this section, employee and employer have their ordinary meanings (see section 11).”

“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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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:

the
(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.

444 FWC may decide on ballot agent other than the Australian Electoral Commission and independent advisor

Alternative ballot agent

(1) The FWC may decide that a person other than the Australian Electoral Commission is to be the protected action ballot agent for a protected action ballot only if:

(a) the person is specified in the application for the protected action ballot order as the person the applicant wishes to be the protected action ballot agent; and

(b) the FWC is satisfied that:

(i) the person is a fit and proper person to conduct the ballot; and

(ii) any other requirements prescribed by the regulations are met.

(2) The regulations may prescribe:

(a) conditions that a person must meet in order to satisfy the FWC that the person is a fit and proper person to conduct a protected action ballot; and

(b) factors that the FWC must take into account in determining whether a person is a fit and proper person to conduct a protected action ballot.

Independent advisor

(3) The FWC may decide that a person (the other person) is to be the independent advisor for a protected action ballot if:

(a) the FWC has decided that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the ballot; and

(b) the FWC considers it appropriate that there be an independent advisor for the ballot; and

(c) the FWC is satisfied that:

(i) the other person is sufficiently independent of each applicant for the protected action ballot order; and

(ii) any other requirements prescribed by the regulations are met.”

Consideration

Section 443

[34] In terms of the requirements of section 443 of the Act I am satisfied that the application has been properly made under section 437. The requirements of section 440 have been met.

[35] The only objection taken by Murdoch to the making of a ballot order is that the Commission needs to consider whether the NTEIU by pursuing item “9 Misconduct” in their log of claims is bargaining for what would be an unlawful term as defined in section 194 (c) of the Act and if that is the case that this should be taken as demonstrating the NTEIU has not been and is not genuinely trying to reach agreement.

[36] The evidence of Dr Price was that she was uncertain whether what was sought by item 9 in the log of claims would apply to all employees irrespective of their period of employment. In my view there is no positive evidence that supports a finding that what the NTEIU is seeking does amount to the inclusion in the proposed agreement of an unlawful term within the meaning of section 194 of the Act. Consequently based on the totality of the evidence I am satisfied that the NTEIU has been and is genuinely trying to reach agreement with Murdoch, the employer of the employees who are to be balloted.

[37] Consequently as provided for in section 443 of the Act the Commission must make a protected action ballot order.

Section 444

[38] The NTEIU propose that Cirenna Pty Ltd be the protected action ballot agent for the protected action ballot. Murdoch does not object to this.

[39] I accept the unchallenged evidence of Mr Mitchell and I am satisfied that Cirenna Pty Ltd is a fit and proper person to conduct the ballot and meets the requirements prescribed by the relevant regulations.

Murdoch’s objections to the questions

[40] Murdoch submits that question 2 cannot be included in the ballot because the question does not concern industrial action and that question 3 should not be included in the ballot because it is not sufficiently clear. A similar objection regarding the clarity of the question with respect to question 7 was withdrawn by Murdoch at the hearing.

[41] Murdoch submits that question 2 in this application has been reworded in an attempt to overcome the deficiency Murdoch identified in the prior proceedings in the wording of question 2 in the prior application.

[42] However it is submitted that the question still falls outside of the definition of industrial action in section 19 of the Act.

[43] Murdoch relies on the Full Bench decision Independent Education Union of Australia v All Hallows' School Limited & Brigidine College, Indooroopilly and Others 3which found4 that employees including an out of office message on their email referring to protected industrial action as the reason for the delay in responding to incoming emails is not a restriction or limitation or delay in the performance of the work. So it is submitted is the case here. It is submitted that employees who complied with the direction in question 2 may well be performing work in a manner different to the manner in which it is customarily performed or inconsistent with normal practice but by doing so they would not be restricting, limiting or delaying the performance of their work. Consequently such action would not be industrial action within the meaning of section 19(1)(a). I agree with Murdoch’s submission on this point.

[44] Separately Murdoch relies on the decision of Justice Tracey of the Federal Court of Australia in Ambulance Victoria v United Voice 5. Justice Tracey concurred with Hollingworth J who had held in Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union6 at [34] that the word “ban” for the purposes of section 19(1) (b)...“contemplates a prohibition on work, rather than a prescription to perform work in a certain way or to achieve a certain result”.I adopt that reasoning of the learned Justices and I agree with Murdoch that in this instance what is proposed by question 2 is not action that would be a ban or partial ban within the meaning of section 19(1)(b) of the Act.

[45] The single Commissioner decisions on which the NTEIU have relied I have not found persuasive on these issues and of course this Commission is generally bound to follow relevant decisions of the Full Bench of this Commission and the Federal Court of Australia.

[46] For both of the reasons put forward by Murdoch the action required of employees by question 2 does not constitute industrial action under the Act. Consequently question 2 cannot be included in the ballot order.

[47] With respect to question 3 whilst Dr Price may have had some uncertainty about the particular circumstances Murdoch put to her in cross-examination being an offshore program I am satisfied that this question is sufficiently clear for employees of Murdoch to answer in a ballot.

Exceptional Circumstances?

[48] I am satisfied that the evidence of Mr McPherson demonstrates that some of the protected industrial action proposed if the ballot is supported would create risks to the health and safety of third parties including students, members of staff not members of the NTEIU and members of the public visiting Murdoch’s campus due to the security being disrupted and I am satisfied that appropriate defensive action could not be taken within the statutory three day period of notice to overcome these risks if security officers do not attend for work.

[49] Separately I am also satisfied that some of the proposed protected industrial action poses risks to animals in the care of Murdoch’s Veterinary Hospital and related operations as well as staff not members of the NTEIU and students who may be involved with these animals and I am satisfied that appropriate defensive action could not be taken within the statutory three day period of notice.

[50] Further I accept that disproportionate damage can be done to the interests of students in some instances with respect to them being potentially unable to complete their course or unable to continue on with their course as a consequence of some of the proposed protected industrial action and I am satisfied that appropriate defensive action could not be taken within the statutory three day period of notice.

[51] I also accept there is the potential for damage to be done to some medium and long-term ongoing research projects which could be irretrievably disrupted and so disproportionate damage can be done to the interests of students and/or research academics not members of the NTEIU involved in such projects as a consequence of some of the proposed industrial action and I am satisfied that appropriate defensive action could not be taken within the statutory three day period of notice.

[52] Consequently I am satisfied that each of these circumstances above is an exceptional circumstance that warrants extending the notice period to be provided before some forms of the proposed protected industrial action is taken.

[53] I have not been persuaded by the evidence that a ban or a partial ban on the use of phone and email systems would have a consequence for safety or security or emergency response that amounts to the circumstances being exceptional justifying an additional period of notice. I have formed the same view as to the proposed ban on overtime, working beyond ordinary hours, accruing flexitime or working outside of 9:00 a.m. to 5:00 p.m. weekdays. Such proposed industrial action does not create exceptional circumstances here. Similarly the ban or partial bans on participating in employer events does not in my view amount to exceptional circumstances. Some emphasis was placed on student graduation ceremonies potentially not taking place to the detriment of students. I find however it is a notorious fact that students can graduate in absentia having not attended their graduation ceremony. There is no evidence before me that the conferral on a student of their qualification is dependent upon the ceremony having been held on a particular date. A stoppage of work that does not allow a graduation ceremony to be held when planned need not prevent students graduating.

[54] The ballot order is to apply to a large number of employees working in a diverse range of positions across all parts of the University. With two exceptions because of the limited evidence before the Commission it is not feasible to draw boundaries around subgroups of those employees with any degree of accuracy in order to create differential notice periods for different groups of employees. The exceptions are those employees who are engaged as security officers and those employees working in Murdoch’s veterinary school (including the animal hospital, associated farms and research laboratories).

[55] In relation to the proposed industrial action referred to in the following questions my decision is that exceptional circumstances justify a greater period of written notice for the purposes of section 414 (2)(a) as follows, I note the numbering of the questions in paragraph [5] of this decision is different form the numbering of the question on the ballot order due to not allowing the original question 2 to be included in the Ballot Order. The new numbering of the questions is included in brackets below:

Question 1 (Remains as Question 1 on the Ballot Order)

Veterinary school employees seven (7) working days.

Security officer employees six (6) working days.

All other employees five (5) working days.

Question 3 (Question 2 on the Ballot Order)

All employees five (5) working days.

Question 7 (Question 6 on the Ballot Order)

All employees seven (7) working days.

COMMISSIONER

Appearances:

A. Cousner on behalf of the applicant.

M. Tamvakologos of Seyfarth Shaw Australiafor the respondent.

Hearing details:

2016.

Perth:

September 13.

 1   Transcript at PN82.

 2   Ibid., at PN79.

 3   [2016] FWCFB 262.

 4   Ibid., at [11] to [12].

 5 [2014] FCA 1119.

 6 [2013] VSC 105.

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