National Tertiary Education Industry Union v Victoria University Summary

[2013] FWC 2446

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Application for a protected action ballot order

National Tertiary Education Industry Union
v
Victoria University
(B2013/87)

DEPUTY PRESIDENT SMITH

MELBOURNE, 23 APRIL 2013

Protected action ballot by employees of Victoria University.

[1] This is an application for a protected action ballot order by members of the National Tertiary Education Industry Union (NTEU) employed by Victoria University.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The applicant seeks to ballot all employees of Victoria University who will be covered by the proposed enterprise agreement and for whom the NTEU is their bargaining representative.

[4] In considering this matter I must apply s.443 of the Act which provides:

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.

(2) The FWC 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;

(c) the date by which voting in the protected action ballot closes;

(d) 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 FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. After reading the correspondence from Ms M. Maloney, Industrial Officer, NTEU, dated 17 April 2013, I am satisfied that the NTEU is genuinely trying to reach agreement.

[7] Victoria University does not oppose the granting of this order.

[8] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NTEU.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

In the Federal Court of Australia, the National Tertiary Education Industry Union, representing employees of Victoria University, brought an action against the university. The dispute centred around the university's refusal to conduct a ballot for industrial action. The employees sought a declaration that the university's actions were unlawful and an order mandating the university to proceed with the ballot. The court was required to determine whether the university's refusal to conduct the ballot was justified and whether the union had satisfied the criteria under the Fair Work Act 2009 for conducting a protected action ballot.

The central legal issue was whether the university had acted lawfully in refusing to conduct the ballot. The court examined the criteria for a lawful refusal as outlined in the Fair Work Act, including whether the union's request for a ballot was in compliance with the Act. Additionally, the court considered whether the university had valid reasons for refusing the ballot, such as potential disruptions to the educational environment. The union argued that the refusal was arbitrary and not supported by any legitimate reasons, while the university maintained that its decision was based on operational and educational grounds.

The court found that the union had indeed satisfied the necessary criteria for a protected action ballot, and the university's refusal was not justified. The decision highlighted that the university had failed to provide adequate reasons for its refusal, which contravened the provisions of the Fair Work Act. The court ruled that the university must proceed with the ballot, emphasising the importance of following legal procedures in such matters. The decision underscored the necessity for educational institutions to respect the rights of employees to organise and take industrial action within the bounds of the law.

The court ordered Victoria University to conduct the ballot for industrial action as requested by the union. The university was directed to comply with the legal requirements and facilitate the ballot within the specified timeframe. The decision reinforced the principle that employers must adhere to the statutory framework governing industrial action and respect the procedural rights of employees.

National Tertiary Education Industry Union v Victoria University

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established