National Tertiary Education Industry Union v University of New South Wales

[2014] FWC 5236

[2014] FWC 5236

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 New South Wales
(B2014/172)

VICE PRESIDENT CATANZARITI SYDNEY, 1 AUGUST 2014

Proposed protected action ballot by employees of the University of New South Wales - application opposed - application for protected action ballot order granted.

[1] The National Tertiary Education Industry Union (the NTEU) made an application to the Fair Work Commission (the Commission) for a protected action ballot to be conducted pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The ballot is to determine whether employees of the University of New South Wales (UNSW) wish to engage in particular protected industrial action for a proposed enterprise agreement.

[3] The application was opposed by UNSW.

[4] Hearings on the application were held on 30 July 2014 and 31 July 2014. At both hearings, the NTEU was represented by Ms J Wells and UNSW was represented by Mr D Nairn. As both representatives were employees or officers of their respective parties, leave to appear under s.596 of the Act was not required.

[5] Ms Rachael Marie Brady (Ms Brady), the Head of Employee Relations and Policy at UNSW, was called to give evidence at the hearing on 31 July 2014.

Legislative Framework

[6] Part 3-3, Division 8 of the Act provides the relevant legislative framework with respect to protected action ballot orders. Specifically:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in application

(3) The application must specify:

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

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

...

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

...

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).”

[7] UNSW did not raise any objections with respect to the content of the protected action ballot order sought by the NTEU. However, UNSW did object to the form of the application and to the scope of the orders sought. This objection was based on the fact that the orders sought by the NTEU were for a single ballot of UNSW staff that are currently covered by both the University of New South Wales (Academic Staff) Enterprise Agreement 2011 and the University of New South Wales (Professional Staff) Enterprise Agreement 2010. UNSW objected to the making of a single protected action ballot order that applied to UNSW staff covered by both agreements, but maintained that it would have had no objections were the NTEU to recast its application such that two separate protected action ballot orders were to take place—one for academic staff and one for professional staff.

Amended application

[8] During the course of the hearing, I allowed the NTEU leave to appeal its application. This was not contested by UNSW. The NTEU’s application originally included a draft order that provided as follows at paragraph 2:

“In accordance with s.437(5) of the Act, the employees to be balloted are those who will be covered by the proposed enterprise agreements being academic staff and professional and staff including casual staff employed in the last 12 months, who are represented by the bargaining representative who is the applicant for this protected action ballot order.”

[9] I allowed the NTEU to strike out the work “agreements” and insert instead “agreement”.

Submissions

[10] UNSW submitted that while the NTEU had initially proposed a single enterprise agreement to cover all academic, professional and teaching staff in its log of claims, it had been a number of months since the NTEU had pressed this claim, and that bargaining had proceeded on the basis of two separate enterprise agreements. This submission was supported by the evidence of Ms Brady. UNSW further submitted that the NTEU had been genuinely trying to reach agreement with respect to two separate agreements.

[11] UNSW also submitted that the University of New South Wales (Academic Staff) Enterprise Agreement 2011 evinced an intention that there should continue to be two separate enterprise agreements for the two groups of staff. Clause 4(b) of the University of New South Wales (Academic Staff) Enterprise Agreement 2011 provides as follows:

“The parties will meet no later than 3 months before the expiry of this Agreement to commence negotiations for a replacement agreement. The parties agree that in the context of those negotiations, the Union will not seek a further pay increase before July 2014.”

UNSW submitted that as the Professional Staff agreement did not contain a similar clause, the parties must have intended for more than one agreement to cover the relevant staff.

[12] UNSW also submitted that the decision of Senior Deputy President Richards in Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd[2012] FWA 1242 (‘CFMEU v Thiess’) was relevant in that Senior Deputy President Richards had refused an application for a protected action ballot order in circumstances where the scope of the proposed enterprise agreement that was the basis of the protected action ballot order was different from the scope of the proposed enterprise agreement that had been before the employer. His Honour found that as the proposed enterprise agreement that was before him had not been put before the employer at any time, the applicant had not genuinely tried nor was genuinely trying to reach an agreement with the employer. It should be noted that I find this decision to be of little relevance to the matter now before me. There is no dispute the NTEU has made a proposal to UNSW for a single enterprise agreement to cover both groups of staff. The application before me, therefore, is not analogous to that in CFMEU v Thiess, which Senior Deputy President Richards found “contemplate[d] an agreement on terms in relation to scope which [had] not been discussed or otherwise pressed in any way by the CFMEU to the Employer.” 1

[13] In reply, the NTEU submitted that there was no legislative impediment to the granting of a protected action ballot order in circumstances where the requirements of ss. 437 and 443 of the Act had been met. The NTEU relied on the Federal Court of Australia’s decision in JJ Richards Pty Ltd v Fair Work Australia [2012] FCAFC 53 in which the Full Court of the Federal Court found (in separate judgements) that there was no justification for reading additional words of limitation into ss. 437 or 443 of the Act.

[14] The NTEU also relied on the decision of the Full Bench of Fair Work Australia in MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [PR500923]. In that matter, the Liquor, Hospitality and Miscellaneous Union (LHMU) had proposed a single agreement covering three separate groups of employees. The employer, however, refused to bargain with two of the three groups, but was willing to bargain with one of the groups of employees. The employer issued notices of representational rights only to those employees who belonged to the group with which it was willing to bargain. At first instance, protected action ballot orders were made in respect of all three groups of employees. The primary contention on appeal related to whether notices of representational rights are required to be issued before a bargaining representative can be appointed for the purposes of an application under s.437. In the context of this appeal, the Full Bench said as follows: 2

“As the Full Bench in Stuartholme noted, “[t]he terms of [s.237] unambiguously suggest that bargaining may have commenced under the Fair Work Act even though the parties to the bargaining process are in disagreement about the scope of the proposed agreement.” Where there is a continuing disagreement between the bargaining parties as to the scope of the proposed enterprise agreement, the remedy for the party who wants a narrower scope is to seek a scope order pursuant to s.238. In the absence of such an order, bargaining will proceed on the basis of the broader scope, save that the parties are entitled to continue bargaining over the scope itself until such time as the scope of the proposed agreement is settled through bargaining or by the making of a scope order.

It follows from the scheme of the FW Act that the obligation under s.173 is to issue a notice of representational rights to the broader class of employees even though the employer does not wish to have an agreement that extends that far. If it were otherwise, it would mean that an employer could always prevent an agreement having a broader scope than it desired by simply refusing or failing to issue notices of representational rights outside its desired scope. Such an outcome is inconsistent with the scheme of the FW Act.

This is not a case where MSS had refused to bargain, rather it had agreed to bargain, and had in fact been bargaining, in relation to one of the three categories of employees within the scope of the agreement proposed by the LHMU. Specifically, it was happy to bargain in relation to Revenue Protection Officers but not in relation to Patrol Officers or Aboriginal Liaison Officers. However, once MSS had agreed to bargain within the scope sought by the LHMU, MSS was obliged to commence bargaining in good faith for the proposed agreement. The scope of the agreement was itself a matter for bargaining or, if the scope could not be agreed, for an application under s.238 of the FW Act for a scope order.”

[References omitted]

Consideration

[15] I am satisfied that a valid application has been made pursuant to s.437. I am also satisfied that the NTEU has proposed a single enterprise agreement that covers both academic and professional staff. Finally, I am satisfied that the NTEU has been, and is, genuinely trying to reach agreement with UNSW. As a result, the imperative language in s.443 of the Act requires me to make a protected action ballot order.

[16] The evidence has established that the NTEU had initially proposed a single enterprise agreement but had continued to bargain for two separate enterprise agreements. I am not satisfied, however, that the NTEU had abandoned its claim for a single enterprise agreement. There is nothing to prevent the NTEU from pressing its initial claim for a single enterprise agreement with renewed vigour at any stage of the bargaining process. Parties are at liberty to pursue their industrial interests in the manner that they feel appropriate, subject to the various legislative injunctions in relation to enterprise bargaining. It is not for the Fair Work Commission to make decisions about the tactical decisions taken by parties in the cut and thrust of bargaining. This is particularly apt in circumstances such as these, where the bargaining process has been protracted and complex.

[17] It must be noted that an alternative remedy is available to UNSW in the form of a scope order under s.238 of the Act. Section 238 of the Act provides as follows:

“238 Scope orders

Bargaining representatives may apply for scope orders

(1) A bargaining representative for a proposed single-enterprise agreement may apply to the FWC for an order (a scope order) under this section if:

(a) the bargaining representative has concerns that bargaining for the agreement is not proceeding efficiently or fairly; and

(b) the reason for this is that the bargaining representative considers that the agreement will not cover appropriate employees, or will cover employees that it is not appropriate for the agreement to cover.

...

When the FWC may make scope order

(4) The FWC may make the scope order if the FWC is satisfied:

(a) that the bargaining representative who made the application has met, or is meeting, the good faith bargaining requirements; and

(b) that making the order will promote the fair and efficient conduct of bargaining; and

(c) that the group of employees who will be covered by the agreement proposed to be specified in the scope order was fairly chosen; and

(d) it is reasonable in all the circumstances to make the order.

...

Orders etc. that the FWC may make

(7) If the FWC makes the scope order, the FWC may also:

(a) amend any existing bargaining orders; and

(b) make or vary such other orders (such as protected action ballot orders), determinations or other instruments made by the FWC, or take such other actions, as the FWC considers appropriate.”

[Emphasis added]

[18] At this stage, UNSW has not made an application pursuant to s.238 of the Act.

Conclusion

[19] As I am satisfied that the requirements of s.443(1) of the Act have been met, I must make a protected action ballot order.

[20] Appropriate orders will be issued with this decision.

VICE PRESIDENT

Appearances:

J Wells for the NTEU.

D Nairn for UNSW.

Hearing details:

2013.

Sydney:

July 30 and 31.

 1   Construction, Forestry, Mining and Energy Union v Thiess Pty Ltd[2012] FWA 1242, [26].

 2   MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union [PR500923], [18]-[20].

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