National Tertiary Education Industry Union v The University of Queensland

[2022] FWC 2081

[2022] FWC 2081

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

The University of Queensland

(B2022/1168)

COMMISSIONER SIMPSON BRISBANE, 5 AUGUST 2022

Proposed protected action ballot of employees of The University of Queensland

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

1. The NTEU filed the application on 2 August 2022, accompanied by a Form F34B Statutory Declaration in support of the application signed by Mr Rohan Dennis Hilton, Industrial Officer employed by the NTEU.  

1. The next day email correspondence was sent from the chambers of Vice President Catanzariti asking UQ to indicate whether it objected or consented to the application by 9am (AEST) Thursday 4 August 2022. The parties were advised that if the Respondent objected to the application, the response was to contain details of the basis of the objection and any material upon which was relied.

1. At 1:53pm on 4 August 2022, the Respondent sent an email which indicated that the Respondent objected to the protected action ballot order. The matter was then allocated to me, and I listed it for a hearing at 3pm Friday, 5 August 2022.

1. At 12:36pm on 5 August 2022, the Respondent sent the following email to my chambers:

“I refer to the application for a Protected Action Ballot Order by the National Tertiary Education Union (the Application), and to the hearing listed for this afternoon to determine an objection raised by the University of Queensland to proposed ballot questions.  I am pleased to advise that the parties have held constructive discussions this morning, resulting in the National Tertiary Education providing an undertaking to the University as follows:

“1. In notifying any intention to take industrial action in the form of a ban on UQ online systems, NTEU will issue written notification to the University at least three (3) working days prior to the action taking place.

2. Such notices will contain:

a. The name of the UQ online system or systems which will be subject to the ban (e.g. Zoom, WorkDay);

b.   The group or groups of employees who will be applying the ban; and

c. The period of time which those employees will be applying the ban.”

The University is content to withdraw its objection to the Application based on this undertaking.  On this basis, we wish to request that the hearing listed for 3pm this afternoon be vacated.

…”

1. At 1:09pm the Applicant emailed chambers requesting that the matter be determined on the papers.

1. In the circumstances and based on the correspondence from the parties including the undertaking given by the Applicant to the Respondent, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the statutory declaration of Rohan Hilton of the Applicant declared on 2 August 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.

1. The Applicant also sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. The Respondent did not oppose this course. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd. I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

1. Therefore, I appoint TrueVote as the protected action ballot agent.

1. An order has been separately issued in PR744554.

COMMISSIONER

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