National Tertiary Education Industry Union v RMIT University

[2015] FWC 6410

[2015] FWC 6410

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

National Tertiary Education Industry Union
v
RMIT University
(B2015/1141)

COMMISSIONER BISSETT DARWIN, 15 SEPTEMBER 2015

Application to extend the 30-day period in relation to B2015/618.

[1] The National Tertiary Education Industry Union (NTEU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) to extend the 30-day period in which industrial action is authorised by the respective protected action ballot.

[2] The Protected Action Ballot Order was made on 25 June 2015 [PR568745]. The ballot was declared by the Australian Electoral Commission on 22 July 2015. The 30-day period starting from the date of the declaration of the ballot, expires on 21 August 2015.

[3] The NTEU lodged the application to extend the 30-day period on 8 September 2015. They have not previously sought to extend the period.

[4] Section 459 of the Act reads as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were votes approving the action; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

[5] On 11 September 2015, my Associate contacted RMIT University to determine if it had any submissions it wished to make on the application. I was subsequently advised in writing on 14 September 2015 that, while it considered that an approval of the 30-day extension application would be tacit approval by the Commission of the NTEU’s time wasting and that the approval would increase uncertainty, it did not oppose the application. In saying so it indicated it thought a fresh protected action ballot is preferable.

[6] RMIT University also indicated that it did not wish to attend any arbitration with respect to the application.

[7] This is an unusual application by the NTEU. If the application is granted it will extend the time by which industrial action must be taken pursuant to the protected action ballot to 20 September 2015. If I issue the order the NTEU must still meet the requirements of the Act in notifying any industrial action pursuant to the order.

[8] I am satisfied that some of the industrial action authorised by the protected action ballot has commenced. Had industrial not commenced in some form my decision to extend the 30 day period may well have been different, given the delay between the end of the initial 30 day period and the date of application for its extension (noting that a decision pursuant to s.459(3) is a discretionary decision of the Commission).

[9] Given the position taken by RMIT University there is no need to hold a hearing to determine this matter. The requirements in s.459(3)(a) and (b) have been met. In reaching this decision I have been mindful of the decision of the Full Bench in EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union. 1

[10] The application for an extension of the 30-day period is granted.

[11] An order to this effect shall be issued today.

COMMISSIONER

 1   [2013] FWCFB 2022

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