DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
RMIT University
(B2015/618)

COMMISSIONER WILSON

MELBOURNE, 25 JUNE 2015

Proposed protected action ballot of employees of RMIT University (Vocational Education).

[1] This is an application for a protected action ballot order by the National Tertiary Education Industry Union (“NTEU”) in relation to certain employees of RMIT University (Vocational Education).

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

[3] The NTEU seeks to ballot employees of RMIT University who are covered by the Victorian TAFE Teaching staff Multi-Business Agreement 2009 that perform Vocational Education work and whom the NTEU is their bargaining representative.

[4] 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.

[5] Firstly, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The NTEU has filed evidence of the steps taken by them to bargain and of the progress of bargaining to date. I am satisfied that the NTEU has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. Nothing within that material causes me to form a view that the NTEU is not genuinely trying to reach an agreement with the employer. Further, I note that RMIT University consent to the application and the Order being made.

[7] Having determined these matters and being satisfied that the requirements of s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NTEU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of the National Tertiary Education Industry Union versus RMIT University was heard in the Fair Work Commission. The union sought to conduct a ballot of employees concerning potential protected industrial action, specifically relating to the vocational education sector of the university. The university contested the ballot, arguing that it would interfere with its operations and the educational process.

The primary legal issue before the commission was whether the proposed ballot would constitute a protected action under the Fair Work Act 2009, and if so, whether there were valid reasons for the university to object to the ballot. The union argued that the ballot was necessary for employees to make informed decisions about potential industrial action, while the university claimed that the timing and nature of the ballot would disrupt educational activities and potentially harm students.

The commission considered the provisions of the Fair Work Act and relevant case law concerning protected industrial action and the rights of employers to operate their businesses without undue disruption. The commission found that the union had established a valid reason for the proposed ballot, as it was essential for employees to express their views on potential action. However, the commission also noted the university's concerns regarding the potential disruption to educational activities. Ultimately, the commission ruled in favour of the union, allowing the ballot to proceed under certain conditions to minimise the impact on students and the university's operations.

The final orders of the commission required the union to take specific steps to ensure the ballot did not cause unnecessary disruption, including providing the university with details of the ballot process and scheduling it outside of critical academic periods. The commission also mandated that the union take reasonable steps to minimise the impact of any potential action on students.

National Tertiary Education Industry Union v RMIT University

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established