National Tertiary Education Industry Union v University of Melbourne

[2023] FWC 581

[2023] FWC 581

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

University of Melbourne

(B2023/221)

DEPUTY PRESIDENT CLANCY MELBOURNE, 10 MARCH 2023

Proposed protected action ballot of employees of the University of Melbourne

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

1. There is no dispute between the parties on the question of whether the Applicant has been genuinely trying to reach agreement. There was correspondence regarding two of the proposed ballot questions but ultimately no objection was pressed. Similarly, there was correspondence concerning a dispute about the time period for the provision of employee information to the Ballot Agent which was ultimately resolved on the basis that it be provided within four working days after the date of the Order, with neither party advising they wished to be heard further on the matter.

1. In the circumstances, 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 declaration of Mr Jacob William Debets of the Applicant 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 sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Mr Stephen Donaldson (Business Owner of TrueVote Pty Ltd). The Respondent initially opposed this and after correspondence advised of a preference for a more secure method of transmission of information to the ballot agent and provided a proposed form of wording. I have decided to make the amendment to clause 8.1(a) of the Order in the terms proposed.

1. Section 444 of the Act states:

“444      FWC may decide on ballot agent other than the Australian Electoral Commission and independent advisor

Alternative ballot agent

(1) The FWC may decide that a person other than the Australian Electoral Commission is to be the protected action ballot agent for a protected action ballot only if:

(a) the person is specified in the application for the protected action ballot order as the person the applicant wishes to be the protected action ballot agent; and

(b) the FWC is satisfied that:

(i) the person is a fit and proper person to conduct the ballot; and

(ii) any other requirements prescribed by the regulations are met.

1. The Regulations provide:

“Reg 3.11         FWC may decide on ballot agent other than the Australian Electoral Commission--requirements for protected action ballot agent

(1) For subparagraph 444(1)(b)(ii) of the Act, this regulation sets out requirements that the FWC must be satisfied have been met before a person other than the Australian Electoral Commission becomes the protected action ballot agent for a protected action ballot.

Note:         The person must also be a fit and proper person to conduct the ballot.

(2) The person must be capable of ensuring the secrecy and security of votes cast in the ballot.

(3) The person must be capable of ensuring that the ballot will be fair and democratic.

(4) The person must be capable of conducting the ballot expeditiously.

(5) The person must have agreed to be a protected action ballot agent.

(6) The person must be bound to comply with the Privacy Act 1988 in respect to the handling of information relating to the protected action ballot.

(7) If the person is an industrial association or a body corporate, the FWC must be satisfied that:

(a) each individual who will carry out the functions of the protected action ballot agent for the industrial association or body corporate is a fit and proper person to conduct the ballot; and

(b) the requirements in subregulations (2) to (6) are met for the individual.

1. Mr Stephen Donaldson (Business Owner of TrueVote Pty Ltd) has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent, and that he has relevant experience in conducting protected action ballots. I am satisfied that Mr Donaldson is a fit and proper person to conduct the ballot. I am also satisfied that Mr Donaldson and TrueVote Pty Ltd are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Donaldson has agreed to be the protected action ballot agent and Mr Donaldson and TrueVote Pty Ltd are 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 Mr Stephen Donaldson as the protected action ballot agent. 

1. An order has been separately issued in PR760185.
   

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR760184>