National Tertiary Education Industry Union v University of Southern Queensland

[2023] FWC 2194

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 Southern Queensland

(B2023/905)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 31 AUGUST 2023

Proposed protected action ballot of employees of University of Southern Queensland

This is an application by the National Tertiary Education Industry Union (NTEU) 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 Southern Queensland (USQ or Employer).

On 31 August 2023, the Commission was advised that USQ, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Ms Andrea Lamont-Mills, NTEU Branch President, setting out the steps taken by the NTEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with USQ, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, and following consultation with the parties, the Commission has determined that the date by which voting is to close is 14 September 2023.[2] This also established the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR765727.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] TrueVote Pty Ltd [2023] FWC 1446.

[2] This is, in effect, ten (10) working days from the date effect of the Order as proposed in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on an application by the National Tertiary Education Industry Union (NTEU) for an order that a protected action ballot be held for employees of the University of Southern Queensland (USQ). The application was made under section 437 of the Fair Work Act 2009. The University did not object to the application and the matter was decided on the papers without a hearing. The NTEU sought the ballot to allow employees to vote on proposed protected action, which is action that is protected from legal action by the employer if certain conditions are met.

The legal issues in this case were whether the requirements for holding a protected action ballot were satisfied and, if so, whether the Commission should make an order allowing the ballot to proceed. The requirements include that there be a genuine attempt to reach an agreement, that a notification period has elapsed, and that the ballot is to be conducted by an approved agent. The Commission found that the NTEU had met all these requirements. The ballot agent, TrueVote, was approved under the Act and would conduct the ballot by closing voting on 14 September 2023.

The Commission was satisfied that the NTEU had genuinely tried to reach an agreement with USQ and that all requirements under the Act had been met. An order was made to allow the ballot to proceed and the date for closing of voting was set. A separate order was also made to require the parties to attend a compulsory conciliation conference to try to reach agreement on the proposed enterprise agreement. The matter will be assigned to another Commissioner to conduct the conference and issue any necessary directions to ensure meaningful negotiations.

The final orders of the Commission were to allow the NTEU to conduct a protected action ballot for USQ employees and to require the parties to attend a compulsory conciliation conference to negotiate the proposed enterprise agreement. The date for closing of voting in the ballot was set as 14 September 2023. The matter will be assigned to another Commissioner to conduct the conference and issue any necessary directions to ensure meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established