National Tertiary Education Industry Union v The University of Newcastle

[2022] FWC 1684

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

The University of Newcastle

(B2022/618)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 JUNE 2022

Proposed protected action ballot of employees of The University of Newcastle

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 Newcastle (Respondent).

On 29 June 2022, 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 Simon Charles Kempton of the Applicant declared on 27 June 2022, 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 PR743245.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) recently decided a case brought by the National Tertiary Education Industry Union (NTI) against The University of Newcastle (University). The NTI sought a protected action ballot order for certain employees of the University under section 437 of the Fair Work Act 2009 (Cth). The University did not oppose the application, and the matter was decided on the papers without a hearing. The primary issue before the Commission was whether the NTI had satisfied the statutory requirements for conducting a protected action ballot. The NTI had to demonstrate that it had genuinely attempted to reach an agreement with the University and that the notification period for the proposed agreement had been met.

The FWC considered the material submitted by the NTI, including a statutory declaration by Simon Charles Kempton, which outlined the steps taken in bargaining with the University and confirmed that the NTI had genuinely tried to reach an agreement. The Commission was satisfied that the statutory requirements for a protected action ballot had been met. Therefore, the FWC decided in favour of the NTI, granting the application for a protected action ballot order.

This decision underscores the importance of ensuring that unions genuinely attempt to negotiate with employers before seeking a protected action ballot. The FWC's decision in this case highlights the need for unions to provide detailed evidence of their bargaining efforts to satisfy the statutory requirements under the Fair Work Act. The Commission's ruling confirms that the NTI had fulfilled its obligations and was entitled to proceed with the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established