National Tertiary Education Industry Union v The Australian National University

[2023] FWC 1157

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

The Australian National University

(B2023/444)

VICE PRESIDENT CATANZARITI

SYDNEY, 16 MAY 2023

Proposed protected action ballot of employees of The Australian National University

This is an application by the National Tertiary Education Industry Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of The Australian National University (Respondent).

On 15 May 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Lachlan Anthony Clohesy of the Applicant declared on 11 May 2023, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR761951.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the National Tertiary Education Industry Union (NTEU) under section 437 of the Fair Work Act 2009 to hold a protected action ballot for certain employees of The Australian National University (ANU). The application was made due to the union's inability to reach an agreement with ANU during the bargaining process. The ANU did not oppose the application, leading to the Commission's decision to determine the matter on the basis of the submitted documents without a hearing. The decision was influenced by a statutory declaration from Lachlan Anthony Clohesy of the NTEU, which detailed the union's efforts to negotiate with ANU and its genuine intent to reach an agreement.

The primary legal issue before the Commission was whether the conditions under section 437 of the Fair Work Act for a protected action ballot were satisfied. This required the Commission to assess whether there was a notification period for the proposed agreement and if the union had genuinely attempted to reach an agreement with ANU. The Commission's decision hinged on verifying these conditions, given the statutory declaration and other documentary evidence presented by the NTEU.

The Fair Work Commission found that the conditions for a protected action ballot were indeed met. The declaration and the other material submitted by the NTEU demonstrated that the union had genuinely tried to reach an agreement and that there was a notification period for the proposed agreement. The Commission was satisfied that the requirements under section 443(1) of the Fair Work Act were fulfilled. Consequently, the application was approved, and an order was issued allowing the NTEU to proceed with the ballot as requested.

The final orders of the Commission allowed the NTEU to conduct a protected action ballot among the specified ANU employees. The Commission's decision was based on the evidence provided, confirming the union's genuine negotiation efforts and the existence of a notification period, thereby meeting the statutory requirements under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established