National Tertiary Education Industry Union v University of Ballarat

[2013] FWC 2449

[2013] FWC 2449

FAIR WORK COMMISSION

DECISION

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

National Tertiary Education Industry Union
v
University of Ballarat
(B2013/93)

The Australian Workers’ Union
v
University of Ballarat
(B2013/798)

United Voice
v
University of Ballarat
(B2013/799)

DEPUTY PRESIDENT SMITH MELBOURNE, 24 APRIL 2013

Protected action ballots by employees of University of Ballarat.

[1] These are applications for a protected action ballot order by members of the National Tertiary Education Industry Union (NTEU), The Australian Workers’ Union (AWU) and United Voice (UV) employed by the University of Ballarat.

[2] The applications are made pursuant to s.437 of the Fair Work Act 2009 (“the Act”). These applications were heard on different days but it is convenient to issue one decision and align the ballot.

[3] The applicants seek to ballot all employees of the University of Ballarat who will be covered by the proposed enterprise agreement and for whom the abovementioned unions are their bargaining representatives.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] To begin, I am satisfied that the applications have been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the applicants have been, and are, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. After hearing submissions from Ms L. Gale, NTEU on Friday, 19 April 2013, Ms A. Wyrick, UV on Tuesday, 23 April 2013 and after reading the written submissions of Mr C. Winter, AWU, dated 23 April 2013, I am satisfied that the unions are genuinely trying to reach agreement.

[7] The University of Ballarat did not appear at the hearing on Friday, 19 April and no correspondence was received from the University in relation to the NTEU’s application. Ms Gale advised that the University has indicated that it does not oppose the making of the order.

[8] In relation to the two other matters, C2013/798 and C2013/799, Mr Andrew Cleary, Manager, Workplace Relations, University of Ballarat (University) wrote to the Commission on 23 April 2013 to advise that the University would not be appearing at the hearing and would not be opposing the orders being made.

[9] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make the protected action ballot orders, as sought by the Unions.

DEPUTY PRESIDENT

Appearances:

L. Gale for the National Tertiary Education Industry Union.

C. Winter for The Australian Workers’ Union [by correspondence].

A. Wyrick for United Voice.

A. Cleary on behalf of the University of Ballarat [by correspondence].

Hearing details:

2013.

Melbourne:

April, 19 and 23.

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