National Tertiary Education Industry Union v RMIT University

[2013] FWC 8915

[2013] FWC 8915

FAIR WORK COMMISSION

REASONS FOR DECISION

Fair Work Act 2009
s.604 - Appeal of decisions

National Tertiary Education Industry Union
v
RMIT University
(C2013/6733)

VICE PRESIDENT CATANZARITI SYDNEY, 13 NOVEMBER 2013

Application for stay of decision [[2013] FWC 8829] and Order PR544355 of Commissioner Wilson made on 11 November 2013 in matter number C2013/6705. Stay refused.

[1] On 8 November 2013, Commissioner Wilson issued an interim order 1 (Interim Order) and on 11 November 2013, a decision2 (Decision) and a final order3 (Final Order) in matter C2013/6705, an application pursuant to s.418 of the Fair Work Act 2009 (the Act) filed by RMIT University (RMIT). Although it is not necessary for me to go into the details of that application, I will note that the application concerned industrial action, including the imposition of a “Results Ban”, which was proposed to be undertaken by members of the National Tertiary Education Industry Union (NTEU) at RMIT.

[2] With respect to that application, Commissioner Wilson made the following findings:

“[15] As a result of s.409, industrial action will only properly be “employee claim action” if it has been authorised by protected action ballot.

[16] The question in this particular matter, of whether an order stopping industrial action should be granted, turns on whether the Results Ban has been authorised by the Protected Action Ballot.

...

[26] Necessarily though, the things which are authorised as protected industrial action are only those things which have been authorised by the protected action ballot. Employees may only have put to them in the ballot those questions authorised by the Protected Action Ballot Order and an Order may only be made which specifies in the question or questions to be put to the employees who are to be balloted “the nature of the proposed industrial action”.

[27] Within the context of the legislative objects; obligations in respect of the performance of the FWC’s functions; and the requirements for protected action ballots referred to, it is evident that “the nature of the proposed industrial action” requires a level of specification in each question, or part of question, that would reasonably inform the voter of what is intended in order that they may make an informed vote.

[28] The significance of the Act’s anti-discriminatory purpose together with the very wide ranging immunities granted by the Act to the industrial action which is authorised by a protected action ballot readily gives rise to this proposition. To find otherwise would potentially lead to partial bans being implemented in any manner of provocative or offensive ways without prior identification in the Protected Action Ballot Order.

[29] For example, could it be said that a permissible partial ban may be to ban the recording, or transmission to the employer, of assessment results relating only to women or only to indigenous students? Could be said, in relation to another question that was put to employees and carried in the ballot, sub-question (d), that it was permissible for a partial ban on responding to enquiries, including by phone, email or in person, but only in respect of enquiries received from persons who are not members of a union?

[30] Very plainly, partial bans of such a character, which may well only be able to operate with the protection of the immunity provisions of s.415, are very different to what a reasonable person would consider to be meant by the phrasing actually used within subquestion (e) and several of the other questions put to the balloted employees. There is nothing within the phrasing used in the questions in the protected action ballot which would signal to a reasonable person that they were being asked to approve industrial activity which might have a discriminatory effect.

[31] Accordingly, I agree with the RMIT’s submission that, had it been the intent of the NTEU to put in place bans that could be inherently discriminatory, such intention would have required separate identification in the Protected Action Ballot Order application. The first purpose of such separate identification would have been to allow a proper argument before the FWC Member hearing the Protected Action Ballot Order, which may well include a debate about whether the question required amendment, or was somehow prevented from being included in the Order. In this respect it is noteworthy that the Full Bench in John Holland did not find that in all cases, the drafting of the questions will be a matter for the applicant, but rather found that this was the proposition in most cases. The second purpose would be to test whether employees might be willing to consider such industrial action, if the FWC was satisfied the question was either permissible under the scheme of the Act, or required to be put because of the findings in John Holland if the Applicant pressed its inclusion in the Protected Action Ballot Order.

[32] I find that the question put to employees in the protected action ballot did not contain any aspect that would allow a reasonable person to view the proposed action as operating in a way that was inherently discriminatory.

[33] Having made this finding, it is then necessary to consider whether the industrial action as actually notified is inherently discriminatory.

[34] As referred to above, the principal application of the ban is in respect of the assessment results of offshore students, with four limited exceptions to the ban — graduating students; students needing the results in order to meet Australian visa requirements; students who are Australian citizens; and students exempted by the NTEU exemptions committee. Of the four limited exceptions, I find that the exemption from the ban in respect of students who “are Australian citizens” is inherently discriminatory and therefore not authorised by the Protected Action Ballot. By exempting from the ban Australian citizens, the ban is discriminatory against people who are not Australian citizens, which amounts to a discrimination on the grounds either of the student’s race, colour, national extraction or social origin.

[35] Having found that the industrial action was not authorised by the Protected Action Ballot, it follows that I must make an Order that the industrial action stop, not occur or not be organised.”

[3] Accordingly, Commissioner Wilson issued an Interim Order in accordance with s.420 of the Act and subsequently the Final Order which included the following terms:

“[2] The Interim Order issued by the Fair Work Commission on 8 November 2013 in PR544350 is set aside with effect from 10.00am Monday, 11 November 2013 and replaced by this Order.

...

[9] The NTEU and its officers, employees and members of the NTEU must:

● stop, not organise and not engage in any industrial action involving any Employees whereby bans or partial bans are placed on the recording, or transmission to RMIT, of assessment results of students enrolled at the Singapore Institute of Management and any other RMIT affiliated offshore institution (the Conduct);

● not organise, aid, abet, direct, procure, induce, authorise, incite, advise, persuade or encourage any of the Employees to engage in the Conduct.”

[4] On 11 November 2013, prior to the Final Order and the Decision being issued, the NTEU filed an appeal against the Interim Order. On the same day, an Amended Notice of Appeal was filed which took into account the Decision and the Final Order issued by the Commissioner. The Amended Notice of Appeal sought a stay of the Final Order and the representatives acting on behalf of the NTEU requested that the matter be heard on an urgent basis.

[5] Needless to say, RMIT opposed the stay application and the matter was heard by me, on an urgent basis, on 12 November 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.”

Submissions

[7] For the purposes of the stay application, the NTEU only pressed grounds 5, 6 and 7 of the Amended Notice of Appeal. Those grounds are as follows:

“5. The learned Commissioner acted upon a wrong principle and/or took into account an irrelevant consideration, namely whether the NTEU’s ban was “discriminatory”.

6. The learned Commissioner erred in finding that the industrial action was not authorised by the Protected Action Ballot, in circumstances where the Protected Action Ballot question authorises “Bans or partial bans on the recording, or transmission to the employer, of assessment results.”

7. The learned Commissioner erred in ordering the NTEU stop etc the Conduct (as defined in par [9] of Final Order PR544355), in that the Final Order goes beyond the Commission’s powers in s 418(1) to order industrial action that “is not, or would not be, protected industrial action” stop, not occur or not be organised.”

[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 as to the proper construction and application of the Act and the jurisdiction of the Commission.;

● 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, otherwise any benefit in the appeal would be lost.

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

● in the absence of a challenge to the Commissioner’s findings at [32] and [34] of the Decision, 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

● in light of the above, the balance of convenience weighs against the grant of a stay and RMIT would not oppose an expedited hearing of the appeal.

Consideration

[10] I have considered the submissions of the NTEU and although I accept that the Amended Notice of Appeal raises an important question as to the proper construction and application of the Act, I am not satisfied on the material presently before me that grounds 5 and 6 of the Amended Notice of Appeal present an arguable case, with some reasonable prospect of success.

[11] Although I am satisfied that ground 7 of the Amended Notice of Appeal poses an arguable case, with some reasonable prospect of success, the appropriate remedy, should that ground ultimately be successful, would surely be an amendment of the Final Order which would still prohibit the Result Ban being imposed on students on the basis that they are not Australian citizens. Accordingly, it cannot be said that the balance of convenience lies with the granting of the stay order.

[12] Irrespective of my findings above, it was submitted by the NTEU that the Results Ban does not have any real impact on the operation of the university, or on the industrial action being undertaken by the NTEU at RMIT until at least 20 November 2013. This is because results are due to be entered on 20 November 2013 and transmitted to students on 28 November 2013. As parties had indicated that an expedited hearing of the appeal may be appropriate and parties were available on 21 November 2013, regardless of whether the grounds of the Amended Notice of Appeal presents an arguable case, with some reasonable prospect of success, the balance of convenience would not lie with the granting of the stay order. This is because, as quoted at [6] above, “The Commission approaches applications for stay orders on the basis that, unless otherwise established, the order subject to appeal was regularly made.”

Conclusion

[13] The application for a stay of the Final Order is refused; however, the hearing of the appeal will be expedited and heard by a Full Bench of the Commission on 21 November 2013.

VICE PRESIDENT

Appearances:

K Farouque with E Burgio for the National Tertiary Education Industry Union.

M McDonald of Senior Counsel with J Tracey of Counsel for RMIT University.

Hearing details:

2013.

Sydney and Melbourne (video hearing):

November 12.

 1   PR544350.

 2   [2013] FWC 8829.

 3   PR544355.

 4   Print S4216.

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