National Tertiary Education Industry Union v University of Wollongong

[2023] FWC 942

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

University of Wollongong

(B2023/354)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 APRIL 2023

Proposed protected action ballot of employees of University of Wollongong

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 Wollongong (Respondent).

On 18 April 2023, 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 Ida Carina Nursoo of the Applicant declared on 17 April 2023, 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 PR761260.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union (the Union) lodged an application with the Fair Work Commission (the Commission) under section 437 of the Fair Work Act 2009 (the Act) for an order authorising a ballot of certain employees of the University of Wollongong (the University) for protected action. The University did not oppose the application. The Commission decided to determine the matter on the papers without holding a hearing.

The primary legal issue before the Commission was whether the Union had satisfied the requirements of section 437 of the Act to obtain an order for a ballot of its members. This required the Union to demonstrate that it had genuinely attempted to negotiate an enterprise agreement with the University and that the time had arrived for a notification to be given under section 443(1) of the Act. The Union submitted a statutory declaration from one of its members, Ida Carina Nursoo, outlining the bargaining process and asserting that it had been genuinely attempting to reach an agreement with the University.

The Commission found that the Union had met the requirements of section 437 of the Act. The statutory declaration from Ida Carina Nursoo provided sufficient evidence that the Union had been genuinely attempting to reach an agreement with the University. The Commission was satisfied that the notification time for the proposed agreement had arrived, and that the Union had fulfilled the necessary conditions to obtain an order for a ballot. Consequently, the Commission decided to grant the Union's application for a ballot order.

The Fair Work Commission issued an order permitting the Union to conduct a ballot of its members in relation to the proposed enterprise agreement. This order was made under section 437 of the Fair Work Act 2009 and was issued on the basis that the Union had satisfied the requirements of the Act and that the University did not oppose the application. The order was issued separately as PR761260.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established