National Tertiary Education Industry Union v Swinburne University of Technology

[2016] FWC 6323

[2016] FWC 6323

FAIR WORK COMMISSION

DECISIONS

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
Swinburne University of Technology
(B2016/931)

Educational services
COMMISSIONER BISSETT	MELBOURNE, 5 SEPTEMBER 2016

Application for a protected action ballot order.

[1] The NTEU has made an application for a protected action ballot order (PABO) pursuant to s.437 of the Act. The application is made in relation to a proposed enterprise agreement the NTEU wish to make with Swinburne University of Technology (Swinburne) in relation to a range of employees employed by Swinburne engaged in the oversight or teaching of courses in the Pathways and Vocational Education Department of Swinburne.

[2] Swinburne objects to the granting of the PABO as it says that the Commission does not have jurisdiction to grant the application because there has been no ‘notification time’ as required in s.437(2A) of the Act in relation to the NTEU proposed agreement. It says therefore, that there is no ability of the NTEU, as a bargaining representative, to make the application.

[3] Swinburne submits that it has issued a notice that meets the requirements of the ‘notification time’ specified in s.173 of the Act but this this is in relation to its commitment to negotiate a multi-enterprise agreement (MEA) in conjunction with a number of TAFE institutes. It says that the MEA it has provided notice about is a different type of agreement to the proposed enterprise agreement of the NTEU. For this reason, it says that there has been no ‘notification time in relation to the proposed agreement’ as sought by the NTEU.

[4] Swinburne therefore says that the Commission does not have jurisdiction and cannot issue the PABO as sought by the NTEU.

Background

[5] On 19 November 2015, the NTEU served a log of claims on Swinburne in which it sought to bargain for a single enterprise agreement in relation to employees engaged in the oversight or teaching of courses in the Pathways and Vocational Education Department of Swinburne. It proposed that the agreement should apply to all employees of Swinburne not covered by the Swinburne University of Technology, Academic & General Staff Enterprise Agreement 2015. 1

[6] On 4 December 2015, following a meeting between the NTEU and Swinburne, the NTEU wrote to the University by email and sought advice ‘from the University in relation to s173(2) of the Fair Work Act whether Swinburne University of Technology agrees to bargain.’

[7] Swinburne replied on 7 December 2016 that it was not in apposition to commence bargaining for a number of reasons including funding and some uncertainty about the NTEU’s coverage of some staff (since resolved) but that it was its ‘hope to commence bargaining with our employees and their representatives as soon as it is appropriate and sensible to do so.’

[8] On 14 April 2016, Swinburne wrote to the NTEU and advised that it had agreed to participate with the Victorian TAFE Association and the stand-alone TAFES in bargaining for a MEA. Swinburne understood that the NTEU and AEU would be involved in that bargaining and it looked forward to working with both unions ‘in this process.’

[9] On 22 June 2016, Swinburne sent a message to all staff that it expected to commence bargaining for a new TAFE MEA within the next two weeks. The communication acknowledged the NTEU’s preference for a single enterprise agreement with Swinburne and noted that it understood that the NTEU were seeing a majority support determination for that purpose. (I take this as the notification time as it is the time that Swinburne agreed to bargain.)

[10] On 4 July 2016 and again on 11 July 2016, (to ensure staff returning from leave received the notice) Swinburne issued a notice of employee representational rights (NERR) in accordance with s.172(3) of the Act. The NERR indicated that Swinburne ‘gives notice that it is bargaining in relation to an enterprise agreement the Victorian TAFE Teaching Staff Multi-Enterprise Agreement 2016 which is proposed to cover employees that are teaching staff members (excluding academic teachers) for the purposes of the Educational Services (Pose-Secondary Education) Award 2010 (Award) and employees who coordinate and/or develop the programs taught by those teaching staff.’

[11] On 18 July 2016, the NTEU made an application to the Fair Work Commission (the Commission) for a majority support determination for an agreement to cover those staff identified in its log of claims of 19 November 2016.

[12] On 21 July 2016, the NTEU wrote to Swinburne and advised that it had become aware of the decision in The Maritime Union of Australia v Maersk Crewing Australia Pty Ltd 2 (Maersk) and that it believed that the decision ‘put beyond doubt’ that the NTEU did not need a majority support determination but could proceed to seeking a PABO.

The Legislation

[13] Section 437 of the 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.

[14] The legislative note to s.437(2A) refers to the definition of ‘notification time’ in s.173 of the Act. Section 173 of the Act states:

173 Notice of employee representational rights

Employer to notify each employee of representational rights

(1) An employer that will be covered by a proposed enterprise agreement that is not a greenfields agreement must take all reasonable steps to give notice of the right to be represented by a bargaining representative to each employee who:

(a) will be covered by the agreement; and

(b) is employed at the notification time for the agreement.

Note: For the content of the notice, see section 174.

Notification time

(2) The notification time for a proposed enterprise agreement is the time when:

(a) the employer agrees to bargain, or initiates bargaining, for the agreement; or

(b) a majority support determination in relation to the agreement comes into operation; or

(c) a scope order in relation to the agreement comes into operation; or

(d) a low-paid authorisation in relation to the agreement that specifies the employer comes into operation.

Note: The employer cannot request employees to approve the agreement under section 181 until 21 days after the last notice is given (see subsection 181(2)).

When notice must be given

(3) The employer must give the notice as soon as practicable, and not later than 14 days, after the notification time for the agreement.

Notice need not be given in certain circumstances

(4) An employer is not required to give a notice to an employee under subsection (1) in relation to a proposed enterprise agreement if the employer has already given the employee a notice under that subsection within a reasonable period before the notification time for the agreement.

How notices are given

(5) The regulations may prescribe how notices under subsection (1) may be given.

[15] There is no dispute that Swinburne has agreed to bargain. It provided a notice to this effect on 22 June 2016 and subsequently issued the NERR on 4 July 2016 and then again on 11 July 2016.

[16] The matter in dispute is if the notification time that Swinburne says it gave in relation to its intent to bargain for a proposed MEA satisfies the requirements of the Act in relation to the NTEU’s proposed agreement which is a single enterprise agreement.

Submissions

National Tertiary Education Industry Union

[17] The NTEU submits that it has met the requirements of s.437 of the Act and that it is genuinely trying to reach agreement. For this reason it says that the Commission must issue a PABO.

[18] The NTEU submits that there has been a notification time ‘in relation to the proposed enterprise agreement’ as required by s.437(2A).

[19] It submits that the ‘proposed agreement’ for a PABO was settled in Maersk so there is no doubt that the proposed agreement is that sought by the applicant for the PABO.

[20] The NTEU says that it served its log of claims on Swinburne, that Swinburne initially refused to bargain with it, although did eventually agree to bargain but not for the agreement proposed by the NTEU (a single enterprise agreement) but rather for an MEA.

[21] The NTEU submits that Maersk is authority for the position that an application for a PABO can be made when the notification time (s.437(2A)) relates to the agreement proposed by the applicant for the PABO. It says that Swinburne has agreed to bargain. It says that Maersk cannot be read down as proposed by Swinburne. It submits that Swinburne has agreed to bargain, initiated bargaining, attended bargaining and rejected the NTEU proposed enterprise agreement.
[22] The NTEU says that its members are entitled to pursue their ‘proposed enterprise agreement’ including through proposed industrial action.

Swinburne University

[23] Swinburne submits that there has been no notification time in relation to the NTEU proposed enterprise agreement. It says that it has not agreed to bargain for the NTEU proposed enterprise agreement.

[24] Swinburne seeks to distinguish the current circumstances from that in Maersk. It says that Maersk ‘turns on its fact’ and these are that Maersk had agreed to bargain with three unions and issued a NERR, the proposed agreement was rejected by employees when the MUA proposed a single union enterprise agreement and the scope of the MUA proposed agreement fell within the scope of the Maersk proposed enterprise agreement. Swinburne submits that, in this case, while it has agreed to bargain for an MEA it has ‘steadfastly’ refused to bargain for the NTEU proposed enterprise agreement.

[25] It says that the proposed MEA over which it has given notice cannot be ‘in relation’ to the NTEU proposed enterprise agreement. The proposed enterprise agreement in s.437(2A) of the Act must have the same meaning as the proposed enterprise agreement in s.437(2) and both must be referring to the proposed enterprise agreement in s.437(1) of the Act. Swinburne says that the proposed enterprise agreement in s.437(2) cannot be a multi-enterprise agreement because industrial action cannot relate to a multi-enterprise agreement (s.413(2) of the Act).

[26] Further, Swinburne says that a multi-enterprise agreement is a different creature to a single-enterprise agreement. It identifies a number of points of distinction between an MEA and single enterprise agreement including, the capacity to vary the scope of an MEA after agreement has been sought but prior to an application being made to the Commission to approve it, that a majority support determination is not available for an MEA, scope orders are not available for an MEA etc.

[27] Swinburne says that its notification time for the MEA does not constitute the notification in relation to the NTEU proposed enterprise agreement because:

● Its agreement to bargain was specifically for an MEA;

● The NERR it issued was specifically for an MEA;

● An agreement to bargain for an MEA must be made within the statutory scheme which does not countenance protected industrial action being available for an MEA;

● An MEA is a different type of agreement to an single enterprise agreement;

● It would be antagonistic to the statutory scheme to permit the NTEU to use Swinburne’s proposed MEA as the basis for its application for a PABO for its proposed agreement.

Consideration

[28] This matter turns on whether the notification time for the proposed agreement given by Swinburne meets the requirements of s.437(2A) such that the NTEU can make an application for a PABO and the Commission has jurisdiction to consider that application.

The decision in Maersk

[29] Swinburne’s summary of the background circumstances in Maersk is correct. The issue that fell to the Full Bench to determine was if the scope of the proposed agreement sought in respect of the PABO had to be the same as that proposed at the ‘notification time’ in respect of the proposed agreement.

[30] The Full Bench in Maersk 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].’

[26] The legislative purpose in the enactment of s.437(2A) is to ensure that protected industrial action cannot be taken until after bargaining has commenced – that is, after the time when the employer agrees to bargain, or initiates bargaining (or one of the other circumstances constituting the ‘notification time’ within the meaning of s.173(2)). To import into s.437(2A) a requirement that the ‘notification time’ must be in respect of the agreement proposed by the PABO applicant would mean (relevantly in the context of the present matter) that the employer must have agreed to bargain or have initiated bargaining for a proposed enterprise agreement with precisely the same scope as that sought by the PABO applicant. Such a construction would have the effect of removing scope from the matters in bargaining in support of which employees can engage in protected industrial action. This would be the case because a bargaining representative would only be able to apply for a PABO in relation to a proposed enterprise agreement containing the scope proposed by, or agreed with, the employer.

[27] A consequence of the construction proposed by Maersk is that by not agreeing on the scope of the proposed enterprise agreement, an employer would be able to prevent employees from engaging in protected industrial action unless they have first obtained a majority support determination, scope order or low paid authorisation. It seems to us that such a consequence is inimical to the scheme of the FW Act. The scope of a proposed enterprise agreement can itself be the subject of bargaining and bargaining within the meaning of the FW Act may have commenced even though the parties disagree about the scope of the proposed enterprise agreement. As the Full Bench observed in Stuartholme School v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane,:

‘[t]he terms of [s237] unambiguously suggest that bargaining may have commenced under the Fair Work Act even though the parties to the bargaining process are in disagreement about the scope of the proposed agreement’.

[28] Importantly, in the absence of a scope order, the parties to a proposed enterprise agreement are entitled to continue to bargain over the scope of the agreement until that matter is settled through bargaining. If there is a notification time in relation to the proposed agreement, protected industrial action in support of a claim for a particular scope may be taken.

[29] The construction we have adopted is entirely consistent with the legislative note to s.437(2A). As set out earlier, the Note states:

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

[30] The Note clearly contemplates that the scope of a proposed enterprise agreement may be the subject of bargaining and that protected industrial action may be taken in support of a claim for a particular scope.

[endnotes omitted]

[31] What is clear from the decision in Maersk is that:

1. A bargaining representative of an employee who will be covered by the proposed enterprise agreement can apply for a PABO (at [17]);

2. The ‘proposed enterprise agreement’ is the agreement the bargaining representative applying for the PABO is proposing at the time the application for the PABO is made (at [15]);

3. There must be a ‘notification time’ for the proposed enterprise agreement (at [18]);

4. The ‘notification time’ is the time the employer agrees to bargain or initiates bargaining or one of the other circumstances in s.173(2) of the Act is met (at [26]);

5. The ‘notification time’ does not require that there be a notification time for the particular agreement proposed by the PABO applicant (at [24]);

6. It is sufficient that there be a notification time ‘in relation’ to the agreement proposed by the PABO applicant (at [24]);

7. Context, including legislative context, is important in determining if the notification time is ‘in relation’ to the proposed enterprise agreement (at [25]).

[32] I do not accept, as was put by Swinburne, that Maersk is only relevant when the matters in dispute relate to the scope of the agreement. Its reliance on the phrase ‘relevantly in the context of the present matter’ (at [26]) to make good this proposition is misplaced. It seems that the Full Bench was indicating that it was not just where a dispute was over scope that its reasoning might have application. Rather, it was pointing out that scope was the matter in dispute in that case. It’s comment cannot be taken to indicate some very limited application of the decision.

Has Swinburne agreed to bargain with the NTEU?

[33] I am satisfied that Swinburne has agreed to bargain with the NTEU. This much is clear from its letter of 14 April 2016. That it agreed to bargain with the NTEU with respect to a proposed MEA (that is, the agreement it seeks) and not the NTEU proposed enterprise agreement as set out in the NTEU log of claims is not the relevant consideration.

[34] The NTEU has engaged in the negotiations for the proposed MEA. This does not mean and cannot be taken to mean that it has agreed with Swinburne as to the proposed agreement with respect to employees at Swinburne. The decision to enter into bargaining involves the parties coming together with different agendas to see if agreement can be reached. That both come to the table is not evidence that either agrees with anything the other has put to be negotiated. It is just that they have agreed to negotiate.

[35] For the NTEU not to participate in bargaining in relation to the proposed MEA would mean that it would walk away from:

(a) bargaining for an agreement that may cover members in places other than Swinburne where it is content for there to be an MEA; and

(b) an inability to try and influence Swinburne with respect to a final enterprise agreement.

[36] That the NTEU is at the bargaining table cannot be held against it.

[37] The letter sent by Swinburne to the NTEU on 14 April 2016 indicates that it has agreed to bargain with the NTEU.

Has there been a ‘notification time’

[38] I am satisfied that Swinburne has provided notice of its agreement to bargain (s.173(2)(a)).

[39] I accept that its notice of agreement to bargain specifies that its proposed enterprise agreement is a multi-enterprise agreement, that is it is off a different scope to that sought by the NTEU in its log of claims.

[40] I accept the view expressed by the Full Bench in Maersk that:

[26] … To import into s.437(2A) a requirement that the ‘notification time’ must be in respect of the agreement proposed by the PABO applicant would mean (relevantly in the context of the present matter) that the employer must have agreed to bargain or have initiated bargaining for a proposed enterprise agreement with precisely the same scope as that sought by the PABO applicant. Such a construction would have the effect of removing scope from the matters in bargaining in support of which employees can engage in protected industrial action. 3

[41] In the context of the matter before me, to import into s.437(2A) a requirement that the ‘notification time’ must be in respect of the type of agreement as proposed by the NTEU would mean that the Swinburne must have agreed to bargain for a proposed enterprise agreement with the same scope as that sought by the NTEU.

[42] I am satisfied that there has been a ‘notification time’ by Swinburne and that its notification relates to a proposed MEA. Subject to the matter below, that Swinburne seeks an MEA does not automatically stop the NTEU making its application. There is no requirement that the agreement that Swinburne proposed must be the same as the proposed enterprise agreement of the NTEU.

Is the notification time ‘in relation’ to the NTEU proposed enterprise agreement?

[43] The proposed enterprise agreement referred to in s.437 is ‘the agreement the bargaining representative applying for an order under s. 447 is proposing at the time the application for a protected action ballot order is made.’ 4 In this case, it is a single enterprise agreement proposed by the NTEU. Any submission to the contrary must be rejected. It is accepted that the ‘proposed enterprise agreement’ in s.437 cannot be a proposed MEA and in this case it is not.

[44] The question is whether there has been a notification time ‘in relation to’ the NTEU proposed enterprise agreement. This requires a determination of whether the notification by Swinburne that it agrees to bargain for an MEA can be seen to be ‘in relation to’ to the single enterprise agreement proposed by the NTEU.

[45] The Act contemplates the making of an enterprise agreement that might be a single-enterprise agreement (s.172(2)), a multi-enterprise agreement (s.172(3)) or a greenfields agreement (s.172(4)).

[46] A multi-enterprise agreement can be made where two or more employers agree to make such an agreement with their employees who are employed at the time the agreement is made.

[47] Swinburne put, and I agree, that a multi-enterprise agreement is a voluntary process entered into by employers. A multi-enterprise agreement cannot be forced upon employers. This is evident by the provisions of the Act which specify that neither a majority support determination nor a scope order can be issued for one. In addition, good faith bargaining orders cannot be issued (unless a low-paid authorisation exists which is not the case in this matter) and protected industrial action cannot be taken in support of an MEA. In this respect, the decision to enter into bargaining for an MEA is in the hands of the employer. I accept that all of these matters differentiate a MEA from a single enterprise agreement.

[48] I would observe that if it was the intention that industrial action could not be taken or applied for in circumstances where the employer had chosen to do seek an MEA, the Act would have said so. It does not. The Act cannot be read to impose any general prohibition on a bargaining representative making an application for a PABO even where the employer wishes to enter into a proposed MEA. The prohibitions in relation to applying for a PABO or taking industrial action are where these are directed at the proposed MEA that is, in support of or opposed to content of the proposed MEA or directed at the participants in the bargaining for the proposed MEA to force them to do something in that process. This is not the circumstance before the Commission.

[49] I am not convinced that the things that distinguish a multi-enterprise agreement from a single enterprise agreement are enough to say that the notification in relation to the MEA is not ‘in relation’ to the NTEU proposed enterprise agreement.

[50] Swinburne wishes to enter into an agreement. They have made this clear. Their proposal is that it be done with a number of other employers. The coverage of its proposed agreement is broader than the NTEU’s preference, but its notification (as opposed to other employers who may also participate in the MEA) is only in relation to an enterprise agreement that will cover a group of its employees. These employees are the same ones (or close to) as those who would be covered by the NTEU proposed agreement. For this reason, I am satisfied that Swinburne’s notification is in relation to the agreement proposed by the NTEU. Regardless of its preference, Swinburne has no control over who else will be covered by the proposed MEA. Its ‘notification time’ is in relation to its employees, the same ones the NTEU says will be covered by its proposed enterprise agreement, it is just that Swinburne wish to engage with other employers as well.

[51] A distraction of discussion as to the type of agreement preferred by Swinburne (a multi-enterprise agreement compared to a single enterprise agreement) does not alter my decision or reasons.

[52] It seems to me that the issue between Swinburne and the NTEU is, at its basic level, one of scope. Having decided, and having a preference, to be part of a proposed MEA does not mean that Swinburne is required by law to stay that course. Of course, having decided as I have does not stop Swinburne remaining in the proposed MEA and allowing its employees to decide if they wish to accept the terms of the proposed MEA or not. Whatever its employees decide will not have any negative consequences on others bargaining for the proposed MEA.

[53] The Full Bench in Maersk said that:

[37] … The purpose of s.437(2A) is to prevent employees engaging in protected industrial action to pressure an employer to agree to bargain. But once an employer has agreed to bargain, or has initiated bargaining for a proposed enterprise agreement, employees may engage in protected industrial action to support their claims in relation to their proposed enterprise agreement (including a claim about the scope of such an agreement). [endnote omitted]

[emphasis added]

[54] The NTEU does not seek to force Swinburne to bargain, Swinburne has already agreed to do that. It seeks to engage with Swinburne as to scope (and perhaps other matters). The Act allows it to do so.

[55] For all of these reasons, I am satisfied that the requirements of s.437(2) have been met. That is, there has been a notification time in relation to the proposed enterprise agreement.

Conclusion

[56] I am satisfied that the NTEU has made an application for a protected action ballot order in accordance with s.437 of the Act. Further, I am satisfied that the NTEU has been and is genuinely trying to seek agreement with Swinburne with respect to the employees to be balloted.

[57] I shall therefore issue the order 5 as sought.

COMMISSIONER

Appearances:

J. Cullinan for the National Tertiary Education Industry Union.

P. O’Grady for Swinburne University of Technology.

Hearing details:

2016.

Melbourne:

September 2.

 1   AE416811.

 2   [2016] FWCFB 1894.

 3 Ibid, at [26].

 4   See Mermaid Marine Vessel Operations Pty Ltd v The Maritime Union of Australia cited in Maersk, at [13].

 5   PR585040.

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