National Tertiary Education Industry Union v University of Sydney Summary

[2022] FWC 639

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union

University of Sydney

(B2022/214)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 MARCH 2022

Proposed protected action ballot of employees of University of Sydney

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

On 22 March 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Simon Charles Kempton of the Applicant declared on 18 March 2022, 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.

An Order has been separately issued in PR739600.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has dealt with an application by the National Tertiary Education Industry Union (the Applicant) for a protected action ballot order in relation to certain employees of the University of Sydney (the Respondent). The application was made under section 437 of the Fair Work Act 2009 (Cth) (the Act). The Respondent did not oppose the application, resulting in the Vice President deciding to determine the matter on the papers without a hearing. The application was to allow the Applicant to conduct a ballot of its members to determine whether they would take protected action in pursuit of a proposed agreement with the Respondent.

The legal issue before the Vice President was whether the statutory requirements for a protected action ballot had been satisfied. The Vice President needed to consider whether the Applicant had genuinely attempted to reach an agreement with the Respondent and whether there was a notification time in relation to the proposed agreement. The Vice President also needed to consider whether the requirements in section 443(1) of the Act had been met. The Vice President concluded that the statutory requirements had been satisfied based on the material before him, including a statutory declaration from the Applicant setting out the steps taken in bargaining with the Respondent and the fact that the Applicant had been, and was, genuinely trying to reach an agreement with the Respondent.

The Vice President found that the Applicant had satisfied the statutory requirements for a protected action ballot order. The Vice President was satisfied that there was a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act had been met. The Vice President noted that the Applicant had taken all necessary steps to reach an agreement with the Respondent, including providing the Respondent with a copy of the proposed agreement and engaging in bargaining sessions. The Vice President also noted that the Respondent had not opposed the application, indicating that it was not in dispute that the statutory requirements had been met.

An Order was issued in PR739600, allowing the Applicant to conduct a protected action ballot of its members. The Vice President noted that the Order was issued separately and did not form part of the decision in this matter. The Vice President concluded that the application should be granted and made the appropriate Order.

National Tertiary Education Industry Union v University of Sydney

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established