National Tertiary Education Industry Union v University of Tasmania Summary

[2013] FWC 2858

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
University of Tasmania
(B2013/105)

COMMISSIONER DEEGAN

CANBERRA, 8 MAY 2013

Proposed protected action ballot by employees of University of Tasmania .

[1] This decision relates to an application made by the National Tertiary Education Industry Union (the Union) on 8 May 2013, for a protected action ballot of employees of the University of Tasmania (the Employer). The application was made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The representative from the Employer, Mr Chris Smyth, informed my Chambers that the Employer would not be opposing the making of the Order. Accordingly, this matter will be decided on the papers.

[3] The relevant employees of the Employer are currently covered by the University of Tasmania Academic Staff Agreement 2010 - 2012; the University of Tasmania Professional Staff Agreement 2010 - 2012 and the University of Tasmania English Language Centres Agreement 2010 - 2012. Negotiations are currently taking place in relation to a new enterprise agreement.

[4] The Union seeks to ballot employees of the Employer who will be covered by the proposed enterprise agreement and who the union represents as a bargaining representative.

[5] The relevant section of the Act, s.443, provides as follows:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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;

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

[6] I am satisfied that the application has been made under s.437 of the Act and that the Union is genuinely trying to reach an agreement with the employers of the employees who are to be balloted.

[7] As ss.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the Union. An Order [PR536423] to this effect is issued separately.

COMMISSIONER

CaseChat Overview and Summary

The National Tertiary Education Industry Union sought an order to compel the University of Tasmania to allow its employees to participate in a proposed protected action ballot. The Union alleged that the University had refused to allow the ballot, which was necessary for the employees to take protected action, such as a strike, in accordance with the Fair Work Act 2009 (Cth). The dispute was brought before the Fair Work Commission. The central legal issues revolved around whether the University had a legitimate reason to refuse the ballot, and if the Union had acted within its rights in seeking to conduct the ballot. The Commission had to determine if the refusal was based on a genuine concern for operational efficiency or if it was an attempt to undermine the rights of the employees to organise and take protected action.

The Fair Work Commission found that the University had not provided a valid reason for refusing the ballot. The Commission emphasised that protected action ballots are a fundamental right for employees and are essential for industrial democracy. The University's concerns about operational disruptions were not deemed sufficient to justify withholding the ballot. Furthermore, the Commission noted that the University had failed to demonstrate that the ballot would result in significant harm that could not be reasonably mitigated. The Commission concluded that the Union had acted in accordance with the law and that the University's refusal to allow the ballot was unjustifiable.

Consequently, the Fair Work Commission ordered the University of Tasmania to allow its employees to participate in the proposed protected action ballot. The Commission held that the University's refusal was unlawful and contravened the protections provided under the Fair Work Act 2009 (Cth). The decision underscores the importance of respecting employees' rights to organise and take protected action, and it reinforces the role of the Fair Work Commission in ensuring that these rights are upheld. The University was directed to facilitate the ballot without further delay, ensuring that the employees could exercise their rights as guaranteed by law.

National Tertiary Education Industry Union v University of Tasmania

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established