National Tertiary Education Industry Union v Victoria University

[2018] FWC 7239

[2018] FWC 7239

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459—Protected action

National Tertiary Education Industry Union
v
Victoria University
(B2018/1080)

Educational services
COMMISSIONER WILSON	MELBOURNE, 26 NOVEMBER 2018

s.459 applications to extend the 30 day period in relation to B2018/861in which industrial action is authorised by protected action ballot order.

[1] The National Tertiary Education Industry Union (NTEU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) for the extension of the period for the commencement of industrial action which was authorised by a protected action ballot.

[2] The application relates to a protected action ballot which was ordered by the Fair Work Commission (the Commission) on 27 September 2018 (PR700862) in a matter involving the NTEU and Victoria University (B2018/861). The result of the ballot was declared on 16 October 2018 with a majority of the relevant employees of Victoria University approving the taking of various forms of industrial action. The 30 day period starting on the date of the declaration of the results during which protected industrial action may be taken expired on 14 November 2018. This application was made on 20 November 2018, six days after the expiry of the first period.

[3] As a result of an objection by Victoria University, to the granting of the application, the matter was listed for hearing on 23 November 2018.

[4] The NTEU was represented by its Industrial Officer, Emma Barnes. Victoria University was represented by lawyers after permission was given by me for that purpose by Nick Ruskin and Katie Sweatman, both of K&L Gates with me being satisfied that the criteria for a grant of permission within s.596(2)(a) had been enlivened, pertaining to the efficiency which legal representation may bring to the matter taking into account its complexity.

[5] A witness statement from an NTEU Industrial Organiser, Gary Ryan, was admitted into evidence on behalf of the Applicant, without cross examination. Victoria University also led evidence by way of a witness statement and oral evidence from Michael Haritou, Victoria University’s Workforce Transformation Strategic Lead.

[6] Subsection 459(3) of the Act provides:

“The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

[7] This subsection gives the Commission a discretion to extend the 30 day period for the commencement of protected industrial action provided that the requirements in s.459(3)(a) and (b) are met.

[8] The grounds relied upon by the NTEU in its application for the extension of the 30 days period include that there continues to be demonstrated will on the part of employees to take industrial action with that will being manifest not only in the action notified and taken to date, but also in the form of “near unanimous endorsement of the escalation of the industrial action, in the form of a raft of bans that had not at the time been notified”. 1

[9] Since declaration of the ballot there have been four notifications to Victoria University of protected industrial action, on 17 October and 8, 9 and 13 November 2018.

[10] Victoria University opposed the application on the grounds that other than for a stoppage of work organised to coincide with an ACTU “Change the Rules” national rally, 2 the only industrial action capable of being demonstrated to have occurred was by one employee in relation to activities associated with course and unit development.3

[11] Victoria University contest whether other notified industrial action actually took place because it was either not discernible that employees who may have been involved were actually working any differently to that which would normally be expected or that it would be ineffective, including for reason that two notified forms of action involved named individuals stopping work for five minutes only, with it then not being ascertainable whether they actually had done so.

[12] Victoria University also argue that there are several factors in this matter that may weigh against the exercise of the Commission’s discretion under s.459 including that a delay in making the extension application would normally weigh against an applicant, as well is it having previously been held that such applications are not just a means to mop up action which is not been taken. 4

[13] There is disagreement between the parties about the extent to which there has been industrial action taken against Victoria University. As recorded above, Victoria University consider that other than the absence by an unidentified number of staff on a date on which there was a “Change the Rules” rally, there has only really been one instance of other actual protected industrial action, with it being taken by just one employee. The NTEU does not concede Victoria University’s point that some of the other forms of notified industrial action have not been taken because they are not discernible and says to the Commission effectively that there is insufficient evidence for the Commission to draw any conclusions about the matter.

[14] There is also a disagreement between the parties about the progress of bargaining. The last bargaining to take place between the parties was a three-day bargaining meeting held on 31 October, 1 and 2 November 2018. 5 Victoria University put forward that at the conclusion of the meeting the University proposed to the NTEU bargaining team that a further week of intensive bargaining should be arranged to discuss outstanding bargaining claims, with no response or proposal having been given so far to the University about the matter.6 In contrast, the NTEU concedes that at the conclusion of the meeting on 2 November 2018 there had been discussion of a further meeting at the end of November or the start of December and that this was to be subject to the availability of those involved, but that to date there had been no formal invitation by way of email from the University on the subject, which was a departure from what is understood to be usual practice.7

[15] It is accepted by the parties that the Commission’s determination of the NTEU’s application involves a matter of discretion. The time limits provided for within s.459 have been said to not be a time-limit for commencement of the industrial action but a time-limit for the completion of industrial action, with the bargaining period providing the limit. 8 The Full Court has also made the following observations about the operation of s.459 and the considerations which may be applied to the section by the Commission:

“[15] … Accordingly, an authorisation for the taking of prospective and particular industrial action not acted upon by the employees within 30 days of the declaration of the result of the ballot, is rendered ineffective by s 459(1)(d) unless the 30 day period has been extended by the Commission under s 459(3). By that means a temporal limitation is placed on the authorisation given by employees through the ballot, so as to address the possibility that the will of the majority of employees to take particular industrial action may have evaporated prior to that industrial action taking place.

[16] Once that purpose is recognised, the object of the function given to the Commission to extend the period of the temporal limitation becomes apparent. As the Full Bench correctly observed at [20]-[21], in many cases it will be plain that majority employee support for the taking of particular industrial action has continued beyond the 30 day period. In those circumstances, the Commission’s discretion to extend the initial period by up to a further 30 days could sensibly be utilised to avoid the cost, delay and inconvenience involved in assessing the will of the majority through a fresh application for a new protected action ballot. As the Full Bench also observed at [21], the provision of that facility is consonant with the object of Div 8 as set out in s 436 “to establish a fair, simple and democratic process” to determine the will of the employees.

[17] If the function given to the Commission is to be exercised by reference to an assessment of whether the will of the majority of employees for the taking of particular industrial action will continue beyond the 30 day period, it seems unlikely that it was intended that such a function could only be exercised during the 30 day period. …” 9

[16] An extensive review of the Commission’s approach on the subject matter of this application was set out by Commissioner Bissett in the matter of National Tertiary Education Industrial Union v James Cook University. 10 I concur with the review set out therein:

“[24] In EnergyAustralia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union 11 the Full Bench of the Fair Work Commission (the Commission) said:

[19] The purpose of the limitation in s.459(1)(d), that is, industrial action by employees “cannot be authorised by a protected action ballot” if it is not commenced within a period of between 30 and 60 days after the declaration of the ballot, is not identified in the relevant explanatory memorandum. Nevertheless, the effect of s.459(1)(d) is clear: once a ballot has been conducted and a particular form of action authorised, the employees must “use it or lose it”. However, there is no prohibition in the FW Act on an employee bargaining representative seeking a further authorisation of particular forms of action through a further protected action ballot. The best inference is that the prohibition in s.459(2) was intended to ensure that the authorisation arising from a protected action ballot could be relied upon in relation to the institution of a particular form of action only if the authorisation remained relatively fresh.

[20] In that context it would be sensible to confer a discretion on the Commission to address the merits of particular circumstances where it may be unfair or otherwise inappropriate to hold an employee bargaining representative strictly to the 30 day time limit in s.459(1)(d)(i) and impose upon them (and the employees they represent) the cost, delay and inconvenience of going back to scratch and making a fresh application for a new protected action ballot.

[21] There will be many cases where it would be entirely conducive to the purposes and objects of the FW Act, and Part 3-3 in particular, for the 30 period to be extended. In many cases it will be clear on evidence that majority employee support for the action in question continues to exist and that resort to the species of protected industrial action will be a legitimate way of seeking to achieve agreement where bargaining has stalled. The regime for authorisation by a protected action ballot is intended to be a “fair, simple and democratic process”. It is a feature of the regime that it may be utilised by ordinary employees as bargaining representatives (and not merely unions) and was intended for use by ordinary practical people as distinct from trained lawyers (compare Davids Distribution Pty Ltd v National Union of Workers (1999) 91 IR 198 at [83] and Kucks v CSR Limited (1996) 66 IR 182 at 184).

[22] The construction advanced by the Appellant would be likely to lead to a greater and sometimes unnecessary resort to protected industrial action. As the expiry of the 30 day period approaches, there will be a natural incentive for a union bargaining representative to initiate forms of protected industrial action authorised by a protected action ballot that have not yet been utilised in order to preserve their availability for future use in the bargaining, even if bargaining is progressing satisfactorily and appears likely to be successful without resort to action of that type. A prudent bargaining representative will take account of the possibility that bargaining may not be successful without resort to such protected industrial action. The construction for which the union contends it better attuned to the objects of the Act. We endorse the observations of O’Callaghan SDP in National Union of Workers v Symbion Pharmacy[2009] FWA 1284 at [10] and of Hampton C in Maritime Union of Australia v DP World Adelaide Pty Ltd[2010] FWA 7638 at [36].

…

[26] The Appellant also relied upon the prospect of an extension order having retrospective effect to confer protection on industrial action taken after the expiry of the 30 day period but before the extension order was made. An equivalent argument did not persuade the Full Court in Streimer v Tamas to a different construction. More importantly, we are not persuaded that, on the proper construction of s.459(1)(d), an extension order would retrospectively confer protection on industrial action that was unprotected at the time it was taken. Section 459(1)(d) focuses on when action “commences”. Conformably with the objects and purpose of the FW Act, the condition in s.459(1)(d)(ii) - “if FWC has extended [the 30 day period]” - should, on its proper construction, be tested as at the time the action commences. If there was no extension order at that time, the action will not be authorised under s.459.

[27] For all these reasons we conclude that the power conferred by s.459(3) may be exercised after the 30 day period in s.459(1)(d)(i) has expired, including in respect of an application made after the expiry of the 30 day period. If follows that the appeal must fail and we dismiss it.”

[25] The Full Bench in that matter did not consider those matters that may be relevant to the exercise of the discretion to extend the 30 day period.

[26] In Maritime Union of Australia v DP World Adelaide Pty Ltd 12Commissioner Hampton found:

[28] The discretions in this matter are to be exercised judicially and all relevant considerations taken into account. This includes the scheme of the Act, the conduct and circumstances of the parties and the consequences of any extension that might be granted.

…

[32] In this case there is no contention that either party has not bargained in good faith. It is also common ground that as a result of the confirmation of positions in the lead up to the hearing of this matter, an in-principle agreement exists as to the basis of a proposed agreement between them.

[33] It is clear to me that Fair Work Australia should avoid an approach to these matters that would encourage a union from taking industrial action in part for the purpose of keeping open the option to take protected action beyond the 30 day period. Further, it would not be appropriate to penalise a party that has acted constructively by not utilising its right to take industrial action.

[27] After determining that he should exercise his discretion to grant an extension Commissioner Hampton observed:

[36] I accept that there may be occasions where it is appropriate that a fresh ballot be conducted after the initial 30 day period. However such would need to be approached in the knowledge that Parliament has provided for the potential of a one off extension without that course of action and there would in my view need to be some cogent reason to refuse an application on that basis alone. In this case, there is no suggestion that the employees have changed in composition or likely disposition. 13 

[28] In Australian Manufacturing Workers’ Union v Mulgrave Central Mill Company Limited 14 Deputy President Asbury concluded:

[9] It has been held that the discretion should be exercised in situations where it can be demonstrated that bargaining is proceeding and an extension is consistent with the objects of the Act as specified in s.436. 15 The discretion is wide and is unconditioned by a statutory direction.16 Parliament has provided for a one off extension without the need for a further ballot, and cogent reasons are required to refuse an application for an extension, such as a change in disposition or composition of employees.17

[10] Circumstances in which an extension has been granted are that parties are bargaining in good faith; there is not a lengthy delay between the expiry of the original 30 day period and the application for an extension being made; 18  parties have participated in conciliation during the original 30 day period;19 or have refrained from taking industrial action and bargained constructively.20 It is also the case that if an overly restrictive view is taken of the circumstances in which the discretion will be exercised, the result will be that industrial action may be taken in a number of forms during the initial 30 day period, simply to preserve the right to take it after that period has expired. This outcome is not consistent with the objects in s.436 of the Act of establishing a fair and simple process.

[17] On the basis of the foregoing matters there is no question that this application, having been made after the expiry of the original 30 day period may be granted, should the matters of discretion to be taken account of be satisfactorily addressed.

[18] Notwithstanding the argument that the application has been made six days after the expiry of the first period, there is insufficient material before the Commission that would cause me to say either that the period is unduly long or that it would add weight to the proposition that somehow the will of the employees affected by the protected action ballot order has diminished. In relation to the length of time, Victoria University put forward that this application has been made essentially because of the commitments given by staff and the union at the meetings referred to above, held between 7 and 9 November 2018, fell away and the union felt that it had to get on and make an extension application in order to protect its position. While such contentions may easily be made, the proposition is less well founded in the evidence before me. The evidence which is before the Commission is that the meetings were held and that there was a near unanimous endorsement of emotion to continue industrial action. 21 The submission that the absence of commitment from that point forward caused the NTEU to leap into action is ultimately speculation and is not a matter of evidence before me. Clearly however, if the delay between the expiry of the first 30 day period in making this application was lengthy or if there was cogent evidence on the contentions put forward by Victoria University to the effect that it was the lack of support for industrial action that motivated the union to make the application, then either eventuality may reasonably lead to consideration of the delay being weighted more highly than I would now.

[19] Victoria University also argued that the proximity of the sunsetting University year should lead to the view that prompt industrial action is not actually available in respect of a significant number of the types of actions sought by the NTEU to take. It contends that because of the circumstance NTEU are seeking the opportunity to “hold those actions up its sleeve” for the new university year. 22 In this regard it refers to the proposition enunciated in United Collieries v CFMEU:

“I am not persuaded that the relevant provisions of the Act are as restrictive as is submitted on behalf of United Collieries. The issue really is whether each question passed at the ballot properly describes industrial action. If a question in the form of question 1 is answered in the affirmative, then industrial action of a particular nature is authorised with no time limits. The effect of the position of United Collieries is that there is an unspoken limitation that action would have to take place within the 30 day period. I disagree. The relevant period for industrial action, having in mind the scheme of the Part of the Act in question, is the bargaining period, not the 30 day period. The existence of the 30 day period does not affect the answer to the question as to whether industrial action has been properly authorised. The purpose of the time limit in question needs to be considered. It is a time limit for commencement of industrial action, not a time limit for completion of industrial action. The bargaining period provides that limit. In my opinion, the purpose of the provision is to ensure that the employees are voting upon a real proposal based upon relatively contemporaneous circumstances. A commitment to relatively prompt action is involved, rather than simply giving an authority which can be held up the sleeve of those negotiating for the employees.” 23

[20] While it is possible to derive a suspicion to the effect that the application is motivated as a means to hold over protected industrial action until a later and presumably more impactful date, such suspicion is insufficiently made out on the evidence before me. The fact that the union chooses to notify the form of industrial action, as is the case in this matter, of “A ban on unit co-ordination and course co-ordination duties by [name redacted] (Senior Lecturer, College of Law and Justice) commencing at 10.00am on Wednesday, 14 November 2018 and concluding at 10.05am on Wednesday, 14 November 2018”, 24 may speak volumes about the capability of the overall strategy, and it may even not be industrial action, but it does not axiomatically lead to a finding that things are being held up a sleeve for future negotiations.

[21] Both parties accept that there is a need for the Commission in its consideration of the matter to test the will of those subject to the protection action ballot order for the taking of further industrial action. The parties contentions in this regard are set out above and may be summarised on the part of the NTEU as, the will continuing to be demonstrated through the “near unanimous endorsement” by staff of industrial action strategy at meetings held between 7 and 9 November 2018; and on the part of Victoria University with its indication of the somewhat tepid drafting of notified industrial action as well as employees’ response to the call to arms. The material before me does not lead to the finding that Victoria University presses; being that the will of those bound by the Order has evaporated or is in the process for evaporating. Such an argument is contradictory to the other head of argument by the Victoria University, to the effect that the NTEU is holding matters up its sleeve and that the real industrial action is being held over to a later date.

[22] Finally, in relation to the argument that there is a demonstrated failure on the part of the NTEU and its members to engage in further bargaining, I also consider that there is insufficient evidence before me to make such a finding. The evidence at least establishes that there was a three day bargaining meeting finishing 2 November 2018 and that neither party walked away from the prospect of there being further bargaining at a later time. As it is, the evidence would suggest that there is a difference of opinion between the parties as to when they would need to meet again and who would be responsible for arranging the next meeting, such is considerably different from evidence led that suggests the NTEU was now refusing to engage.

[23]
After considering all the material before the Commission on the subject I am satisfied that it is appropriate to make the order sought by the Applicant. Since there is no particular material before me about the length of time of the extension, I see no reason to truncate the available period of extension and the order to be issued by me will extend the period of time by 30 days.

COMMISSIONER

Appearances:

Ms E Barnes for the Applicant.

Mr N. Ruskin and Ms K. Sweatman of K&L Gates for the Respondent.

Hearing details:

2018.

Melbourne:

23 November 2018.

Printed by authority of the Commonwealth Government Printer

<PR702658>

 1   Exhibit A1, Witness Statement of Garry Ryan, [9].

 2   Exhibit R1, Witness Statement of Michael Haritou, [11].

 3   Ibid, [13].

 4   Exhibit R2, Outline of Submissions, [14].

 5   Exhibit R1, Ibid, [18].

 6 Ibid, [29] – [31].

 7 Exhibit A1, [12] – [13].

 8   United Collieries v CFMEU (2006) 153 FCR 543, (2006) 153 IR 103, [21].

 9   Energy Australia Yallourn Pty Ltd v Construction, Forestry, Mining and Energy Union [2014] FCAFC 8, (2014) 241 IR 100.

 10   [2017] FWC 4752.

 11   [2013] FWCFB 2022.

 12   [2010] FWA 7638.

 13   Ibid.

 14   [2016] FWC 4976.

 15   National Union of Workers v Symbion Pharmacy Services Pty Ltd [2009] FWA 1284 per O’Callaghan SDP at [11].

 16   Re: Transport Workers’ Union of Australia [2011] FWA 1097 per Lewin C.

 17   MUA v DP World Adelaide Pty Ltd [2010] FWA 7638 per Hampton C.

 18   National Union of Workers v Symbion Pharmacy Services Pty Ltd .

 19   AMACSU and Others v Flinders Operating Services Pty Ltd T/As Alinta Energy [2011] FWA 4617 per Bartel DP.

 20   MUA v DP World Adelaide Pty Ltd.

 21   Exhibit A2, [22].

 22   Exhibit R2, Respondent’s Outline of Submissions, [26].

 23   United Collieries v CFMEU (2006) 153 FCR 543, (2006) 153 IR 103, [21].

 24   Exhibit R1, Attachment B.