National Tertiary Education Industry Union v Swinburne University of Technology

[2017] FWC 1153

[2017] FWC 1153

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Tertiary Education Industry Union
v
Swinburne University of Technology
(B2017/143)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 1 MARCH 2017

Proposed protected action ballot of employees of Swinburne University of Technology.

[1] On 5 September 2016 I issued a decision 1 and protected action ballot order2 (PABO) on application by the National Tertiary Education Industry Union (NTEU). The application was made in relation to a proposed enterprise agreement the NTEU wished to make with Swinburne University of Technology (Swinburne) in relation to employees engaged in the oversight or teaching of a range of courses in the Pathways and Vocational Education (PAVE) Department of Swinburne. Swinburne, at that time, had already issued a Notice of Employee Representational Rights (the 2016 NERR) pursuant to s.173 of the Fair Work Act 2009 (FW Act) to those employees who would otherwise be covered by the agreement the NTEU sought to make in which it advised those staff that it was bargaining in relation to a TAFE Teaching Staff Multi-Enterprise Agreement (MEA).

[2] That decision was subsequently overturned on appeal 3 and the order quashed on 27 September 2016. The appeal decision found that the decision at first instance was in error, in part because of an incorrect reliance on the decision in The Maritime Union of Australia v Maersk Crewing Australia Pty Ltd4(Maersk).

[3] Details of the background to the current application by the NTEU are set out in National Tertiary Education Industry Union v Swinburne University of Technology 5 (NTEU v Swinburne) and are not repeated here.

[4] On 22 December 2016 Deputy President Hamilton made a decision 6 and issued a Determination7 in respect to an application by the NTEU for a majority support determination with respect to “employees who are TAFE teaching staff, staff teaching ELICOS or Pathways programs, and staff responsible for the oversight of courses in TAFE, ELICOS or Pathway programs” (the MSD).

[5] As a result of the MSD and in accordance with the provisions of s.173(1) of the FW Act, on or about 5 January 2017 Swinburne issued a NERR (the 2017 NERR) to the relevant employees in the following terms:

Swinburne University of Technology gives notice that it is bargaining in relation to an enterprise agreement Swinburne University of Technology Pathways and Vocational Education Enterprise Agreement 2017 which is proposed to cover employees that are employed as TAFE Teaching staff, staff teaching ELICOS or Pathways programs, and staff responsible for the oversight of courses in TAFE, ELICOS or Pathway programs. 8

[6] The NTEU has sought to meet with Swinburne in relation to bargaining for the agreement referenced in the 2017 NERR. On 20 January 2017 Ms Linda Cargill, an Industrial Organiser for the NTEU, wrote to Professor Kristjanson of Swinburne and asked that Swinburne nominate a person to negotiate the Agreement. 9

[7] Mr David Coltman, Deputy Vice-Chancellor, PAVE replied on 27 January 2017. He said, in part:

…As previously indicated, Swinburne’s position is that it wants to be part of a multi-enterprise agreement which will cover Swinburne and other TAFE institutes (MEA). Swinburne does not want a single enterprise agreement. Swinburne is committed to the MEA process as we consider the MEA to be the most appropriate and expeditious way to get the best outcome for Swinburne and its staff.

While Swinburne does not want and does not agree to bargain for a single enterprise agreement, it is prepared to discuss the matters set out in the Log of Claims in the context of the MEA negotiations. In fact, the subject matter of a number of the claims set out in the Log of Claims have already been discussed and continue to be discussed by the parties to the proposed MEA, including the NTEU, in the context of that agreement. These include wages, superannuation, consultation regarding organisational change, job security, current conditions of employment and Academic Teachers…

As you know, the MEA discussions are taking place with the assistance of the Commission. The last meeting for the MEA occurred on 24 January 2017. The next scheduled MEA discussions are to occur on 31 January 2017.

[8] On 6 February 2017 Ms Clare Danaher, an Industrial Officer with the NTEU wrote to Mr Coltman and again asked Swinburne to commence negotiations for a single agreement. 10

[9] Mr Coltman replied on 9 February 2017 and said:

…Whilst we understand that the NTEU seeks to commence bargaining for a single-enterprise agreement, we re-iterate our position outlined in our email to Linda Cargill of 27 January 2017 – that is, Swinburne wishes to pursue a multi-enterprise agreement because we consider this to be the most appropriate and expeditious way to get the best outcome for Swinburne and its staff.

As stated in our email of 27 January, Swinburne is happy to discuss your Log of Claims with you in the context of and as part of the negotiations for the MEA. The next MEA discussions are to occur on 15 February 2017. 11

[10] With respect to the matters raised by Mr Coltman in his correspondence with the NTEU, bargaining has been occurring for the MEA (as notified in the 2016 NERR) since about July 2016. A number of meetings have occurred including as recently as 20 February 2017. 12 The NTEU (along with the Australian Education Union) have been in attendance at those meetings as a bargaining representative.

[11] On 13 February 2017 the NTEU made an application for a PABO with respect to the agreement it seeks to negotiate with Swinburne. It seeks to ballot all TAFE teaching staff, staff teaching ELICOS or Pathways programs, and staff responsible for the oversight of courses in TAFE, ELICOS or Pathway programs employed by Swinburne (PAVE teaching staff) and for whom the NTEU is a bargaining representative.

[12] Swinburne advised that they objected to the issue of a PABO. The application was therefore subject to a contested hearing.

Legislative requirements

[13] The legislative requirements for the making of a PABO are set out in Part 3-3 Division 8 of the FW Act.

[14] Section 437 of the FW Act states:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) 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 applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[15] Section 443 of the FW Act sets out when the Fair Work Commission (Commission) must make a PABO:

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:

(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.

[16] Part 3-3 Division 2 of the FW Act specifies what protected action is and the requirements that must be met for industrial action to be protected.

[17] Section 408 is in Part 3-3 Division 2. It states that industrial action will be protected industrial action if it is employee claim action.

[18] Section 409 states that employee claim action is industrial action that is organised in support of advancing claims in relation to an agreement, meets the common requirements of Subdivision B and meets the additional requirements set out in the section. Those additional requirements include that the action is authorised by a PABO (s.409(2)), that the industrial action not be in support of unlawful terms (s.409(3)); that it not be in relation to pattern bargaining (s.409(4)) or relate to a demarcation dispute (s.409(5)).

[19] The “common requirements” referred to in Subdivision B are at s.413 and s.414 of the FW Act. Section 414 deals with notice requirements and is not a matter at issue in these proceedings.

[20] Section 413 of the FW Act states:

413 Common requirements that apply for industrial action to be protected industrial action

Common requirements

(1) This section sets out the common requirements for industrial action to be protected industrial action for a proposed enterprise agreement.

Type of proposed enterprise agreement

(2) The industrial action must not relate to a proposed enterprise agreement that is a greenfields agreement or multi-enterprise agreement.

Genuinely trying to reach an agreement

(3) The following persons must be genuinely trying to reach an agreement:

(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;

(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement—the bargaining representative of the employee.

Notice requirements

(4) The notice requirements set out in section 414 must have been met in relation to the industrial action.

Compliance with orders

(5) The following persons must not have contravened any orders that apply to them and that relate to, or relate to industrial action relating to, the agreement or a matter that arose during bargaining for the agreement:

(a) if the person organising or engaging in the industrial action is a bargaining representative for the agreement—the bargaining representative;

(b) if the person organising or engaging in the industrial action is an employee who will be covered by the agreement—the employee and the bargaining representative of the employee.

No industrial action before an enterprise agreement etc. passes its nominal expiry date

(6) The person organising or engaging in the industrial action must not contravene section 417 (which deals with industrial action before the nominal expiry date of an enterprise agreement etc.) by organising or engaging in the industrial action.

No suspension or termination order is in operation etc.

(7) None of the following must be in operation:

(a) an order under Division 6 of this Part suspending or terminating industrial action in relation to the agreement;

(b) a Ministerial declaration under subsection 431(1) terminating industrial action in relation to the agreement;

(c) a serious breach declaration in relation to the agreement.

Will the industrial action be protected industrial action?

Submissions – Swinburne

[21] Swinburne accepts that the NTEU has met the requirements of s.443 of the FW Act in that the application was made under s.437 and the NTEU is genuinely trying to reach agreement (although suggested that this later matter might be an issue on some other day).

[22] Swinburne submits however that, prior to making a PABO, the Commission must be satisfied that the proposed industrial action will be protected industrial action.

[23] Swinburne make this submission on the grounds that:

● An application for protected action ballot order under s.437 of the FW Act is directed at the engagement in protected industrial action. This much, it says, is clear from s.437(1) of the FW Act and is amplified by the “Note” to the object of Division 8 (which states that “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.”).

● Protected industrial action is defined in s.408 of the FW Act and, for the current purposes, means “employee claim action”;

● Employee claim action must meet the common requirements of Subdivision B (s.409);

● Before action might be considered protected industrial action, consideration must be given as to whether the “common requirements” can be, or are capable of being, satisfied.

[24] Swinburne says that any industrial action taken pursuant to a PABO issued arising from the current application will not be capable of being protected industrial action because it will “relate to” a proposed multi-enterprise agreement (that is the one notified in the 2016 NERR). This would be in breach of s.413(2) of the FW Act. For this reason it says that the Commission cannot make the PABO.

[25] Swinburne relies on the decision in Maersk and Travelex Ltd v Commission of Taxation of the Commonwealth of Australia 13 (Travelex) with respect to the meaning it gives to the term “in relation to” (or relates to). In Maersk the Full Bench of the Commission said:

[24] Contrary to Maersk’s contention, we are not persuaded that s.437(2A) requires that there has been a notification time in respect of the enterprise agreement proposed by the PABO applicant. As we have mentioned, the reference to ‘a proposed enterprise agreement’ in s.437(1) refers relevantly to the enterprise agreement proposed by the applicant at the time the PABO application is made. Subsection 437(2A) provides that a PABO application cannot be made ‘unless there has been a notification time in relation to the proposed enterprise agreement’ (emphasis added). The subsection does not require there to have been a notification time for the particular agreement proposed by the PABO applicant. It is sufficient that there has been a notification time ‘in relation to’ the agreement proposed by the PABO applicant.

[25] The expression ‘in relation to’ is one ‘of broad import’. In O’Grady v Northern Queensland Co Ltd McHugh J observed that the expression ‘requires no more than a relationship, whether direct or indirect, between two subject matters’. Context is important in determining the connection to which a statutory provision is referring. In Travelex Ltd v Commissioner of Taxation, French CJ and Hayne J said ((2010) 241 CLR 510 at [25]):

‘It may readily be accepted that ‘in relation to’ is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that ‘the subject matter of the enquiry, the legislative history, and the facts of the case’ are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply ‘in relation to’ rights [citations omitted].’ [Endnotes omitted]

[26] Swinburne submits that, in this case, in circumstances where the NTEU is a bargaining representative in the negotiations for the MEA, the industrial action that the NTEU would take following the PABO will relate to the MEA. It submits that the industrial action will be taken to pressure Swinburne to abandon its preference for the MEA and make a single enterprise agreement as preferred by the NTEU.

[27] Swinburne submits that the NTEU has been clear for an extended period that it wishes to have Swinburne excluded from the scope of any proposed MEA. It says that this was made clear in correspondence from Mr Josh Cullinan to Swinburne on 21 July 2016, in the NTEU application for a PABO of 26 August 2016 and in the witness statement of Dr Colin Long, the Victorian Division President of the NTEU, filed in these proceedings where he stated:

I am aware that Swinburne University management are seeking to have Swinburne PAVE staff covered by that Multi-Employer Agreement. At all times during the MEA negotiations I have made it clear that the NTEU is opposed to that outcome, and seek instead to have Swinburne PAVE staff covered by a single-employer agreement with Swinburne University. 14

[28] Swinburne concedes that if the NTEU was not a bargaining representative in the MEA negotiations this degree of connection would not exist but, in this case, the MEA (preferred by Swinburne) and the single enterprise agreement (preferred by the NTEU) are two sides of the same coin and are not separable. If the NTEU was not a bargaining representative for the MEA any industrial action that its members at Swinburne might take could not be directed at the MEA but rather would be directed only to its bargaining for a single enterprise agreement.

[29] Any industrial action taken by the NTEU will therefore be in contravention of s.413(2) of the FW Act and not be capable of being protected industrial action.

[30] In such circumstances, Swinburne says that the Commission cannot issue the ballot order.

Submissions – National Tertiary Education Industry Union

[31] The NTEU submits that, in determining an application for a PABO, the Commission:

…should interpret the relevant sections [of the FW Act] and exercise any discretions in a way that:

(a) promotes the sole purpose of the provisions which is to allow employees to vote on whether or not they support industrial action;

(b) allows the application to be heard and the vote conducted in a timely manner without delay;

(c) doesn’t require scrutiny of a raft of indirect legal issues (eg. whether a claim is a permitted matter), thereby avoiding legalistic and technical arguments against such applications. 15

[32] The NTEU says that it was genuinely trying to reach agreement with respect to its proposed enterprise agreement (as notified to the relevant employees in the 2017 NERR arising from the majority support determination). 16

Consideration of whether the industrial action taken pursuant to the ballot will be protected industrial action

[33] Section 443 of the FW Act states that the Commission must make a PABO if the Commission is satisfied that the application has been made under s.437 of the FW Act and the Commission is satisfied the applicant has been and is genuinely trying to reach agreement.

[34] However, the question Swinburne says needs to be determined is if the industrial action arising from the PABO will be protected because the industrial action relates to an MEA. Swinburne says that if the action could not be protected industrial action (industrial action in relation to an MEA cannot be protected), the PABO should not be issued. The NTEU says that whether or not the industrial action taken pursuant to a PABO is protected is a matter to determine at the time the industrial action is taken.

[35] Swinburne seeks to rely on the “broad import” that may be given to the term “relates to” in s.413(2) of the FW Act (or the equivalent phrase “in relation to”) to ground its submission that any industrial action taken “in relation to” the single enterprise agreement would relate to the multi-enterprise agreement.

[36] The scheme of the FW Act is that a bargaining representative may apply for a PABO “in relation to a proposed enterprise agreement” (s.443).

[37] A bargaining representative cannot make such an application “unless there has been a notification time in relation to the proposed enterprise agreement” (s.437(2A)).

[38] The notification time for a “proposed enterprise agreement” is when, relevantly, the employer agrees to or initiates bargaining or a majority support determination “in relation to the proposed enterprise agreement” comes into operation (s.173(2)(a) and (b)). The proposed enterprise agreement is, by virtue of the decision in Swinburne University of Technology v National Tertiary Education Industry Union, 17(Swinburne v NTEU) constrained. The “proposed enterprise agreement” referenced in s.443 must be the proposed enterprise agreement to which the notification time applies. The phrase “in relation to” as it appears in s.173 should be narrowly construed to avoid unintended consequences.

[39] In this case, the “proposed enterprise agreement” is that for which the majority support determination was issued. This is evident from the application and statutory declaration 18 filed by the NTEU in accordance with the Fair Work Commission Rules 2009. In that statutory declaration (not subject to any specific submissions or disputed by Swinburne) the NTEU says that the date of notification time for the “proposed enterprise agreement” was 22 December 2016 (the date of the majority support determination) and that the relevant NERR was issued to employees on 5 January 2017. It is clear from this that the bargaining representative has sought a PABO for a “proposed enterprise agreement” which is a single enterprise agreement that it seeks to negotiate with Swinburne with respect to PAVE teaching staff.

[40] Should industrial action occur arising from the issue of the PABO, such industrial action will not be protected industrial action if the industrial action relates to a “proposed enterprise agreement” that is a multi-enterprise agreement (s.413(2)).

[41] Swinburne says that I should conclude now (prior to the issue of the PABO) that the “proposed enterprise agreement” for which the industrial action will be taken is the MEA in circumstances where all of the material before the Commission indicates that the “proposed enterprise agreement” is the single enterprise that was subject of the notification time, the 2016 NERR and the application for the PABO.

[42] I am not satisfied that it is appropriate to conflate the two proposed enterprise agreements and, at some convenient time, determine that the “proposed enterprise agreement” is no longer that in the majority support determination or the 2016 NERR, but rather is that notified in the 2015 NERR (i.e. the MEA). Such an approach would appear contrary to the reasoning in Swinburne v NTEU. A range of actions have been taken by the NTEU “in relation to” the “proposed enterprise agreement” that is the single enterprise agreement as identified in the application and associated statutory declaration. None of this is questioned by Swinburne. I see no warrant, having accepted that information, to conclude that any industrial action would relate to the multi-enterprise agreement.

[43] Swinburne approach the question of whether a PABO should be issued by considering if any resulting industrial action would be protected industrial action. I do not consider this the correct approach. The consideration of whether to issue a PABO must be from a consideration of whether the mandatory conditions in s.443 of the FW Act have been met. If they have been met, the FW Act provides no discretion to the Commission. If the requirements of s.443(1) are met, a PABO must be issued – this much is clear from the words “The FWC must make a protected action ballot order…”

[44] Neither s.443(1)(a) or s.443(1)(b) requires a consideration of whether any industrial action taken as a result of the PABO would be protected industrial action. There are some questions that can only be resolved at the time they become live issues. I consider this to be one of them. The conduct of the parties in the lead up to the taking of industrial action may be relevant to determining if the industrial action relates to a multi-enterprise agreement and hence whether it is protected industrial action or not. I do not believe that such a finding is possible now.

[45] This is not to suggest that the consideration by the Commission at the time of making a PABO as to whether the proposed action would constitute industrial action is not the correct approach. The FW Act requires that a protected action ballot order specify the questions to be put including the nature of the proposed industrial action. The resolution of the order itself requires some basic examination of whether the action would be industrial action. This however, should not be confused with a consideration of whether the industrial action, when taken, will be protected industrial action, as many other factors will influence this including the form of the notice given pursuant to s.414 of the FW Act.

[46] This application is made more complex than is normally encountered because Swinburne seeks a multi-enterprise agreement, but it seems to me that it is the proposed enterprise agreement that has been sought by the bargaining representative making the application and that has been subject to the notification time that is the relevant enterprise agreement for the purposes before me.

[47] If, at the time the employees covered by the prosed enterprise agreement take industrial action, Swinburne reach the conclusion, on the basis of the circumstances at that time, that the “proposed enterprise agreement” for which industrial action is being taken is the MEA then it can make an appropriate application under the FW Act.

[48] To reach the conclusion sought by Swinburne requires the issue of the PABO being approached from the end outcome – that is, will the industrial action arising from the PABO meet the common requirements for protected industrial action and hence be protected. I consider it more appropriate to consider if the issue of the PABO meets the requirements of s.443 of the FW Act. This is not to say that there might not be circumstances where a PABO should not be issued because action arising from it will not be protected – for example where industrial action has been suspended or terminated but those circumstances do not face me here.

[49] Further, I have considered a number of decisions of the Commission in relation to applications for PABOs. In those that are disputed (that do not solely go to whether the questions constitute industrial action) it is on the grounds that the bargaining representative is not genuinely trying to reach agreement.

Have the requirements of s.443 of the FW Act been satisifed?

[50] I have therefore considered if I must make a PABO. With respect to the requirements of s.443 of the Act:

● I am satisfied that the NTEU is genuinely trying to reach agreement (s.443(1)(b));

● I am satisfied that the NTEU is a bargaining representative for the proposed enterprise agreement (s.437(1));

● I am satisfied that the proposed agreement referred to in s.437 of the FW Act that the NTEU seeks is the single enterprise agreement subject to the MSD of December 2016 and the subsequent 2017 NERR issued by Swinburne. I am therefore satisfied that there has been a notification time in relation to the proposed agreement (s.437(2A));

● I am satisfied that the proposed enterprise agreement is not a MEA or a greenfields agreement (s.437(2)).

● The ballot application before me specifies the groups of employees to be balloted and the questions to be put (s.437(3) and (5));

● The ballot agent is to be the AEC (s.437(4));

● The application was accompanied by the required documentation (s.437(6)).

[51] I am satisfied that the context of this matter, including the legislative context, is such that I cannot and, further, should not, at this time, conclude that any protected industrial action resulting from the issue of this PABO would be in relation to the MEA.

[52] I am therefore satisfied that there is no impediment to the grant of the PABO on the basis sought by the NTEU.

Is the proposed action industrial action within the meaning of the FW Act?

Submissions – Swinburne

[53] Swinburne submit that, if the PABO is granted there are three questions which are either vague and unclear or relate to action that would not constitute industrial action.

[54] Swinburne submits that the reference is question (g) to the “use of on-line systems” and in question (h) to “teaching related duties” are unclear.

[55] Swinburne relies on the decision in United Firefighters’ Union of Australia v Country Fire Authority 19 in support of its submission that the questions on the ballot paper should be posed in such a way that employees understand the implication of the questions in a work context – that is, that they know what they are being asked to vote on. It says that where a ban is framed by reference of vague concepts it could be that the statutory requirements that the nature of the proposed industrial action be specified is not be met.

[56] Specifically it says that the vanilla reference to “on-line systems” could mean anything or virtually nothing, that such systems are ubiquitous in the workplace and almost all aspects of a teaching job are impacted by “on-line” technology.

[57] With respect to “teaching related duties” Swinburne says that it potentially covers everything or nothing depending on how an employee might interpret the question.

[58] Swinburne submits therefore, that both questions should be removed from the PABO as they do not meet the statutory requirements of s.437(3)(b) of the FW Act.

[59] Swinburne submits that question (i) does not constitute industrial action. Swinburne referred to the decision of the Full Bench of the Commission in Independent Education Union of Australia v All Hallows’ School Limited T/A All Hallows’ School and others 20 (All Hallows)where the Full Bench found that the inclusion of an “out of office” message in emails did not constitute a ban or limitation on the performance of work and hence was not “industrial action” as defined in s.19 of the FW Act. It says that the action proposed under question (i) is similar to the communications considered in All Hallows and is therefore not industrial action. The question should be removed from the PABO.

Submissions - National Tertiary Education Industry Union

[60] The NTEU says that its members are highly educated and literate. It says that its members know that “on-line systems” captures a range of systems and that “teaching related duties”, whilst broad, has meaning by reference to the existing agreement (which sets out the duties). For these reasons it says that questions should remain.

[61] Whilst maintaining a view that question (i) was, in fact, industrial action the NTEU re-considered the form of the question following a request from me that they do so in light of the decision of the Commission in Australian Nursing and Midwifery Federation v Nillumbik Shire Council. 21

Conclusions as to questions

[62] Following the request from me, the NTEU provided a revised form to question (i). On this basis, Swinburne has withdrawn its objection to that question. The question will be included in its revised form.

[63] The remaining two questions in dispute are:

(g) Bans or partial bans on the use of on-line systems?; and

(h) Bans or partial bans on teaching delivery and/or teaching related duties?

[64] In John Holland v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 22 (John Holland) the Full Bench of the Commission considered whether a question which asked employees if they endorsed “the taking of any and all protected industrial action against your employer which is authorised by this ballot, separately, concurrently and/or consecutively in the form of…” was one which could be included on a protected action ballot. The question then listed stoppages of periods of between one and 48 hours and indefinite or periodic bans. In that matter, John Holland claimed that the question was “ambiguous and lacking in the necessary specificity” and that the employees would have “little appreciation of the outer limits of the action for which endorsement was sought”.23

[65] The Full Bench considered the matter by reference to the notice requirements in s.414 of the FW Act (and s459). It found that:

[19] Moving now to the construction of s 437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s 414 was not authorised by the ballot and that the action is not protected for the purposes of s 409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.

[20] The appellant’s criticism of the questions in the AMWU application is based on a technical and pedantic approach. The expression “separately, concurrently and/or consecutively” does not deprive the question of meaning. Those expressions apply, as far as there is scope, to the types of industrial action specified. We have already noted the terms of s 459(2) which gives separate justification for the term “consecutively”. While it is possible to construct extreme examples of the number of types of industrial action which might be authorised by an affirmative answer to the questions, in practical terms the questions do no more than identify eight types of industrial action and the possible options for taking each of those types of action.

[21] The criticism of question eight is unfounded. It might have been clearer to split that question into two parts, one dealing with indefinite bans on overtime and one with periodic bans. But the question is not meaningless. Seen in its full context the question asks whether employees will endorse bans on overtime which are either indefinite or periodic. An affirmative answer would indicate endorsement of both types of ban.

[22] Nor do we accept the criticism that questions one to eight, taken together, are nonsensical. An employee can endorse a number of different types of industrial action even if the deployment of one type may logically exclude another. There is no reason why employees cannot be asked to endorse a range of options.

[66] The same observations made in John Holland can be made here. Whilst it might have been clearer to specify specific systems or what teaching related duties were included, the questions are not meaningless. I am satisfied that the employees know what “on-line systems” means and that they are aware of their “teaching-related duties” such that they can answer the questions asked by the ballot.

[67] As the Full Bench said in John Holland, if the questions give rise to ambiguity it may be that the action notified in the s.414 notice was not authorised by the ballot, “but these are matters more appropriate for consideration under other provisions.”

[68] There is no question that bans on “on-line systems” or “teaching-related duties” will be industrial action. The complaint is with respect to vagueness and lack of specificity. These are matters to be resolved when the precise action is notified under s.414 of the Act.

[69] For this reason, I will allow questions (g) and (h). Question (i) will be included in its revised form.

Conclusion

[70] I am satisfied that the NTEU has met the requirements of s.437 of the FW Act and that it is genuinely trying to reach agreement with Swinburne for a proposed agreement.

[71] I shall therefore make a protected action ballot order based on that sought by the NTEU and in accordance with the terms of this decision. The ballot will close no later than 25 days from the date of issue of the Order.

[72] The Order 24 will be issued in conjunction with this decision.

COMMISSIONER

Appearances:

L. Gale for National Tertiary Education Industry Union.

A. Bell of counsel for Swinburne University of Technology.

Hearing details:

2017.

Melbourne:

February 22.

 1   National Tertiary Education Industry Union v Swinburne University of Technology[2016] FWC 6323.

 2   National Tertiary Education Industry Union v Swinburne University of TechnologyPR585040.

 3   Swinburne University of Technology v National Tertiary Education Industry Union [2016] FWCFB 6838.

 4   [2016] FWCFB 1894.

 5   [2016] FWC 6323.

 6   National Tertiary Education Industry Union [2016] FWC 8998.

 7   National Tertiary Education Industry Union PR588592.

 8   Exhibit Swinburne 1.

 9   Exhibit Swinburne 4, tab 20.

 10   Exhibit Swinburne 4, tab 22.

 11   Exhibit Swinburne 4 tab 23.

 12   Exhibit Swinburne 3, paragraphs 16, 17, 20, 25, 27, 29, and 31.

 13 (2010) 241 CLR 510 at [25], cited in Maersk.

 14   Exhibit NTEU 2, paragraph 4.

 15   Exhibit NTEU 1, paragraph 2.4.

 16   Given that this matter is not contested I have not set out the submissions in detail.

 17   [2016] FWCFB 6838.

 18   Exhibit NTEU 3.

 19   [2016] AIRC 563.

 20   [2016] FWCFB 262.

 21   [2016] FWC 3664.

 22 (2010) 194 IR 239.

 23 Ibid at [13].

 24   PR590464.

Printed by authority of the Commonwealth Government Printer

<Price code C,  PR590569>