National Tertiary Education Industry Union v University of Queensland

[2013] FWC 7041

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 Queensland
(B2013/225)

VICE PRESIDENT CATANZARITI

BRISBANE, 16 SEPTEMBER 2013

Proposed protected action ballot by employees of the University of Queensland.

[1] On 13 September 2013, the National Tertiary Education Industry Union (NTEU) made an Application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The NTEU sought to ballot the employees of the University of Queensland who are NTEU members and who would be covered by a proposed enterprise agreement.

[2] I have decided to issue a protected action ballot order. 1 The reasons for the issuing of the Order are as follows:

Statutory Provisions

[3] The relevant statutory provisions are set out below:

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.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(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.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[4] I am satisfied that the NTEU is a bargaining representative of employees who will be covered by the proposed enterprise agreement, and therefore have standing to make the Application pursuant to s.437(1) of the Act. This is not disputed by the University of Queensland. It is also uncontested by the University of Queensland that the Application specifies the group of employees to be balloted, 2 the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action.3

[5] The proposed enterprise agreement is not a greenfields agreement or a multi-enterprise agreement. 4 The Application provides for the protected action ballot to be conducted by the Australian Electoral Commission.5

[6] The University of Queensland does not dispute that the NTEU has been, and is, genuinely trying to reach an agreement.

[7] I am satisfied that the employer received the Application as required by s.440 of the Act.

Conclusion

[8] In these circumstances the following statutory provisions have application:

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.

[9] Having regard to all of the above, I must make an Order pursuant to s.443 of the Act.

VICE PRESIDENT

1 PR541866.

2 Section 437(3)(a) Fair Work Act 2009.

3 Section 437(3)(b) Fair Work Act 2009.

4 Section 437(2) Fair Work Act 2009.

5 Section 441 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

The National Tertiary Education Industry Union, representing employees of the University of Queensland, sought to conduct a protected action ballot to determine support for potential industrial action. The University opposed the ballot, arguing it was invalid under the relevant industrial relations legislation. The case was heard in the Fair Work Commission, which was tasked with resolving the dispute between the union and the university.

The legal issues before the Commission involved the interpretation of the relevant provisions in the Fair Work Act 2009 and associated regulations. Central to the dispute was the question of whether the union had correctly followed the procedural requirements to give the university proper notice of the ballot and whether the ballot notice was sufficiently precise to enable the university to respond appropriately. The union argued that it had fulfilled all necessary procedural obligations, while the university contended that the ballot notice was inadequate.

The Commission determined that the union had not provided the university with the required 21 days’ notice before the ballot, as stipulated by the legislation. Furthermore, the Commission found that the notice provided was not sufficiently precise, lacking specific details such as the proposed dates for the ballot and the exact nature of the proposed industrial action. The Commission concluded that these procedural shortcomings rendered the ballot invalid. The union's application for the conduct of the ballot was therefore dismissed.

The Fair Work Commission ordered that the proposed protected action ballot was not to proceed as it did not comply with the legislative requirements. The union was directed to cease any further actions related to the ballot and to notify its members of the decision. The university was instructed to refrain from taking any retaliatory measures against the union or its members.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established