National Tertiary Education Industry Union v University of Melbourne

[2018] FWC 1878

[2018] FWC 1878

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 Melbourne
(B2018/207)

DEPUTY PRESIDENT HAMILTON MELBOURNE, 5 APRIL 2018

Proposed protected action ballot of employees of the University of Melbourne.

[1] This decision concerns an application by the National Tertiary Education Industry Union (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 at the University of Melbourne (the Respondent) who are currently covered by the University of Melbourne Enterprise Agreement 2013, the nominal expiry date of which is 30 June 2017.

[2] The Applicant seeks to ballot all employees of the Respondent who will be covered by the proposed enterprise agreement and for whom the Applicant is their bargaining representative.

[3] The application was filed by the Applicant on 23 March 2018. Shortly after the application was filed, the Fair Work Commission (the Commission) sent correspondence to the Respondent seeking advice as to whether it opposed the application. On 26 March 2018, the Respondent advised the Commission that it does not dispute the Applicant has been genuinely trying to reach agreement; however, it considers that some of the questions to be put to employees as part of the ballot are too vague. The Respondent requested that a conference be conducted between the parties to try to resolve its concerns.

[4] On 29 March 2018, I conducted a conference between the parties.

[5] Mr Daniel Proietto of Lander & Rogers sought permission to appear on behalf of the Respondent. The Applicant opposed permission to appear.

[6] I heard submissions from the Applicant and Mr Proietto and I granted permission pursuant to s.596 of the Act to enable the efficient conduct of proceedings taking into account the complexity of the matter.

[7] In considering this application, I must have regard to s.443 of the Act. Section 443 of the Act 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.’

[8] In the conference, the Respondent raised concerns it had with proposed ballot questions 10, 13 and 14. Discussion led to an agreed form of words.

[9] In addition, the Applicant had elected TrueVote Pty Ltd to be the protected action ballot agent.

[10] On 3 April 2018, I was notified that TrueVote Pty Ltd had withdrawn its consent to be the protected action ballot agent for the matter.

[11] On 3 April 2018, the Applicant filed an amended application, in which it amended the number of ballot questions and the framing of one question, and elected Cirrena IVS Pty Ltd as the new protected action ballot agent.

[12] On 4 April 2018, the Respondent advised the Commission by email that it accepted the amended application and amended ballot questions.

[13] I grant the application to amend the application pursuant to s.586 of the Act.

[14] On 4 April 2018, I received a statutory declaration from Mr M. Michael of Cirrena IVS Pty Ltd. I have considered the information in Mr Michael’s statutory declaration and I am satisfied that he meets the requirements set out s.444(1) of the Act and reg.3.11 of the Fair Work Regulations 2009 (the Regulations) for the nomination of an alternative protected action ballot agent to the Australian Electoral Commission.

[15] Section 444(1) of the Act provides:

‘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.’

[16] Regulation 3.11 of the Regulations provides:

‘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.’

[17] On 4 April 2018, the Respondent advised the Commission that it did not have any concerns regarding Mr Michael’s statutory declaration.

[18] Both the Applicant and the Respondent have agreed for me to determine the matter on the papers.

[19] I am satisfied that the application has been made in accordance with s.437 of the Act.

[20] I have considered the application and the statutory declaration of Ms Sarah Roberts, a National Industrial Coordinator of the Applicant, setting out the steps taken by the Applicant to try to reach agreement with the Respondent.

[21] I am satisfied that there is a notification time in relation to the proposed enterprise agreement, that the Applicant has been, and is genuinely trying to reach agreement with the Respondent, and that the other requirements for the making of a protected action ballot order have been met.

[22] Accordingly, the Commission is required under s.443 of the Act to make a protected action ballot order.

[23] An order has been separately issued in PR601628.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR601630>