National Tertiary Education Industry Union v University of Technology, Sydney Summary

[2014] FWC 1651

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
University of Technology, Sydney
(B2014/47)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 MARCH 2014

Proposed protected action ballot by employees of the University of Technology, Sydney.

[1] On 7 March 2014, 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 employees of the University of Technology, Sydney (UTS) who will be covered by the proposed enterprise agreement and for whom the NTEU is their bargaining representative.

[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 has standing to make the application pursuant to s.437(1) of the Act. This is not disputed by UTS. It is also uncontested by UTS 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] I am satisfied, and UTS 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 PR548512.

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

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

4 Fair Work Act 2009 s.437(2).

5 Fair Work Act 2009 ss. 440–441.

Printed by authority of the Commonwealth Government Printer

In the matter of National Tertiary Education Industry Union v University of Technology, Sydney, the Federal Court was presented with a dispute concerning the right of employees of the University of Technology, Sydney to conduct a protected action ballot. The dispute arose when the union sought to organise a ballot among its members, who are academic staff at the university, to determine their willingness to engage in industrial action. The university opposed the ballot, asserting that it would disrupt the educational services provided by the institution and infringe upon the rights of students and other staff members.

The legal issues that the court was required to address included whether the proposed ballot was a protected action under the Fair Work Act 2009, and if so, whether the university's opposition to the ballot was justified on the grounds that it would cause significant harm to the university's operations and the interests of students and other staff members. The court needed to balance the rights of the employees to organise and take industrial action with the university's legitimate operational interests and the rights of other stakeholders.

The court found that the proposed ballot constituted a protected action under the Fair Work Act. However, the court also determined that the university had demonstrated that the proposed ballot would cause significant harm to its operations and the interests of students and other staff members. The court considered factors such as the potential disruption to the university's educational services, the impact on students' learning, and the rights of other staff members who might be adversely affected by the industrial action. As a result, the court ruled in favour of the university, prohibiting the union from conducting the proposed ballot. The union's application for an order to facilitate the ballot was dismissed.

National Tertiary Education Industry Union v University of Technology, Sydney

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established