National Tertiary Education Industry Union v The University of New South Wales Summary

[2023] FWC 571

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

The University of New South Wales

(B2023/212)

VICE PRESIDENT CATANZARITI

SYDNEY, 9 MARCH 2023

Proposed protected action ballot of employees of the University of New South Wales

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 University of New South Wales (Respondent).

On 8 March 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 Jeane McLeod Wells of the Applicant declared on 3 March 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 PR760147.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union sought a protected action ballot order in relation to certain employees of the University of New South Wales under section 437 of the Fair Work Act 2009. The application was made to the Fair Work Commission, which decided to determine the matter on the papers without holding a hearing as the University of New South Wales did not oppose the application. The Union argued that it had been genuinely trying to reach an agreement with the University of New South Wales and had followed the necessary steps in bargaining with the University of New South Wales. The Vice President of the Fair Work Commission was satisfied that the requirements in section 443(1) of the Act had been met.

The legal issue that the Fair Work Commission had to decide was whether the Union had genuinely been trying to reach an agreement with the University of New South Wales and if it had followed the necessary steps in bargaining with the University of New South Wales. The Commission had to determine if the Union had met the requirements of section 443(1) of the Act in order to grant the protected action ballot order. The Commission also had to consider if the notification time in relation to the proposed agreement had been met.

The Fair Work Commission was satisfied that the Union had genuinely been trying to reach an agreement with the University of New South Wales and that it had followed the necessary steps in bargaining with the University of New South Wales. The Commission found that the requirements in section 443(1) of the Act had been met and that the notification time in relation to the proposed agreement had been met. The Commission granted the Union's application for a protected action ballot order. The decision was made on the basis of the material before the Commission, including the statutory declaration of Jeane McLeod Wells of the Union.

The Fair Work Commission issued an Order separately in PR760147, granting the Union's application for a protected action ballot order in relation to certain employees of the University of New South Wales. The Order was issued on 9 March 2023, and it allowed the Union to proceed with the ballot to seek protected action from the employees.

National Tertiary Education Industry Union v The University of New South Wales

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established