National Tertiary Education Industry Union v The University of Adelaide

[2013] FWC 2308

[2013] FWC 2308

FAIR WORK COMMISSION

DECISION

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

National Tertiary Education Industry Union
v
The University of Adelaide
(B2013/83)

Educational services
COMMISSIONER STEEL	ADELAIDE, 15 APRIL 2013

Application for a protected action ballot order.

[1] This decision deals with an application for a protected action ballot order made by the National Tertiary Education Industry Union (NTEU) in relation to its members employed by The University of Adelaide and to be covered by a proposed new enterprise agreement.

[2] In a hearing held today the Commission was provided with submissions by both the applicant and respondent in regard to the application. The granting of an order was not opposed by the respondent in terms of their submissions, but they provided argument as to the form of the order.

[3] Accordingly the Commission is satisfied that the applicant has been, and is genuinely trying to reach an agreement with the employer and that the application pursuant to s.437 of the Fair Work Act 2009 (the Act)is competent.

[4] With regard to the matters addressed as to the form and content of the order, the Commission has decided as follows.

[5] The respondent asserts that the intended clause 4, question e) - Bans or partial bans on the recording or transmission to the employer, of assessment results, is inappropriate as it has been settled previously in the matter of an application for an order to suspend or terminate protected industrial action, University of South Australia v National Tertiary Education Industry Union. 1 The Commission is persuaded by the submissions of the NTEU that the form of the ban is open to such an application and hence the respondent’s position is protected. The question shall remain.

[6] With regard to the intended clause 4, question h), the respondent asserts that such a question may be inappropriate given regard to the application of s.415 of the Act. That is, that such actions may constitute destruction or damage to property.

[7] The NTEU chose to leave such consideration to the Commission. The Commission considers such actions do in the run the risk of reflecting damage to the respondent’s property and hence the question is inappropriate to be included in the order.

[8] In relation to the proposed clause 6 of the order - Posting of the Order, the respondent considers such a requirement on the employer is an impost and inappropriate. The NTEU leaves it to the discretion of the Commission. Given s.436 of the Act that determines the object of protected action ballots is to identify whether employees wish to engage in protected industrial action for a proposed enterprise agreement, the proposed requirement for the posting of this order “at prominent locations” in the employers facility is superfluous. Each relevant employee will receive the ballot and vote according to their wishes. The clause will not be included in the order.

[9] The final form of the order will be issued separately.

COMMISSIONER

Appearances:

Ms C Baldwin for the applicant

Mr A Short for the respondent

Hearing details:

Adelaide

2013:

15 April

 1   [2009] FWA 1535

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