National Tertiary Education Industry Union v Swinburne University of Technology

[2013] FWC 1810

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
Swinburne University of Technology; Swinburne Student Amenities Association; National Institute of Circus Arts
(B2013/64)

DEPUTY PRESIDENT SMITH

MELBOURNE, 25 MARCH 2013

Proposed protected action ballot by employees of Swinburne University of Technology, Swinburne Student Amenities Association and National Institute of Circus Arts.

[1] This is an application for a protected action ballot order by members of the National Tertiary Education Industry Union (NTEU) employed by Swinburne University of Technology, Swinburne Student Amenities Association and the National Institute of Circus Arts.

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

[3] The applicant seeks to ballot all employees of Swinburne University of Technology, Swinburne Student Amenities Association and the National Institute of Circus Arts who will be covered by the proposed enterprise agreement and for 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] In relation to this matter s.442 is also relevant.

[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, I have no reason to believe that is not the case as the Swinburne University of Technology, Swinburne Student Amenities Association and the National Institute of Circus Arts do not oppose the order being made.

[8] 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

Printed by authority of the Commonwealth Government Printer

The National Tertiary Education Industry Union brought proceedings against Swinburne University of Technology in relation to proposed industrial action by the employees of the University, as well as the Swinburne Student Amenities Association and the National Institute of Circus Arts. The dispute centred on the lawfulness of a proposed protected action ballot, and whether the Union had complied with the necessary legal requirements in relation to the ballot. The matter was heard in the Fair Work Commission. The key legal issue before the Commission was whether the Union had complied with the provisions of section 395 of the Fair Work Act 2009 (Cth) in relation to the proposed protected action ballot. Section 395 requires that a protected action ballot must be conducted in accordance with the requirements of the Act, and must include certain particulars, including the names and occupations of the employees who will be subject to the ballot. The Union argued that it had complied with all necessary requirements, and that the proposed ballot was therefore lawful. Swinburne University of Technology, however, submitted that the ballot was unlawful as it did not comply with section 395 of the Act. The Commission found in favour of Swinburne University of Technology, holding that the Union had not complied with the requirements of section 395 in relation to the proposed ballot. The Commission found that the Union had not included all necessary particulars in the ballot papers, and had not given adequate notice of the ballot to the University. The Commission accordingly held that the proposed ballot was unlawful, and made orders accordingly. The Commission ordered that the Union not proceed with the proposed ballot, and that it take all necessary steps to ensure that any future ballot complied with the requirements of the Act. The Commission also ordered that the Union pay the costs of the proceedings.

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