National Tertiary Education Industry Union v University of Technology Sydney

[2022] FWC 1171

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

University of Technology Sydney

(B2022/432)

VICE PRESIDENT CATANZARITI

BRISBANE, 13 MAY 2022

Proposed protected action ballot of employees of University of Technology 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 Technology Sydney (Respondent).

On 13 May 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 Jeane McLeod Wells of the Applicant declared on 11 May 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 PR741615.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union (Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of the University of Technology Sydney (Respondent). The application was made to allow the Applicant to conduct a ballot of its members to determine if they support protected action in response to unresolved bargaining issues with the Respondent. The Respondent did not oppose the application, and the matter was determined on the papers without a hearing.

The primary legal issue before the Commission was whether the statutory requirements for a protected action ballot were satisfied. This included verifying that the Applicant had genuinely attempted to reach an agreement with the Respondent and that the notification period specified in section 443(1) of the Act had been met. The Applicant submitted a statutory declaration by Jeane McLeod Wells, outlining the steps taken in bargaining with the Respondent and confirming the union's genuine efforts to reach an agreement.

The Vice President was satisfied that the statutory declaration and other material before the Commission demonstrated the Applicant's genuine attempts at bargaining and compliance with the notification period. Consequently, the Vice President decided to grant the application and issued an Order for a protected action ballot. The decision was made in accordance with the evidence and submissions provided, without the need for a hearing due to the absence of opposition from the Respondent.

The final orders include the granting of a protected action ballot order for the employees of the University of Technology Sydney, as applied for by the National Tertiary Education Industry Union. This decision allows the union to proceed with the ballot to ascertain the members' support for protected action, given the unresolved bargaining issues with the Respondent.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established