National Tertiary Education Industry Union v Victoria University T/A Victoria University Melbourne

[2018] FWC 6033

[2018] FWC 6033

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Tertiary Education Industry Union
v
Victoria University T/A Victoria University Melbourne
(B2018/861)

COMMISSIONER WILSON MELBOURNE, 27 SEPTEMBER 2018

Proposed protected action ballot of employees of Victoria University.

[1] This matter concerns an application by the National Tertiary Education Union (NTEU) for a protected action ballot order in relation to certain employees of Victoria University. The application is made pursuant to Part 3 – 3 of the Fair Work Act 2009 (the Act) and is opposed in certain respects by Victoria University.

[2] In broad terms the NTEU wishes to reach a single enterprise agreement with Victoria University which would replace two existing agreements, although for reasons which are set out below that matter itself is in contest in these proceedings. The two enterprise agreements referred to in the NTEU application are the Victoria University Enterprise Agreement 2013 1 (the VU Agreement) and the Victoria University (TAFE Teaching Staff) Enterprise Agreement 2014 – 20162 (the TAFE Agreement), the nominal expiry dates of which are 21 December 2017 and 21 December 2016 respectively.

[3] The NTEU seeks that a ballot be held of a group of employees now described in the following amended terms:

“All academic, teaching and professional staff of Victoria University, other than:

- The Vice-Chancellor, Deputy Vice-Chancellors, Pro Vice-Chancellors and Vice Presidents

who will be covered by the proposed agreement and for whom the NTEU is their bargaining representative.

For the avoidance of doubt, teaching staff includes TAFE teachers.”

[4] To give effect to this intention, the NTEU seeks an order from the Fair Work Commission detailing the arrangements for the ballot as well as the questions to be put to employees to be balloted as well as directions to be issued by the Commission to a private-sector protected action ballot agent, Cirrena IVS Pty Ltd, the NTEU and to Victoria University regarding the timetable for ballot, compilation of a role of voters and the conduct of an electronic ballot.

[5] The Applicant proposes 13 individual questions to which Respondent employees will need to answer with “yes” or “no” responses. The questions are prefaced with a common preamble. In complete form, the questions are:

“In support of reaching an Enterprise Agreement with Victoria University, do you authorise industrial action against your employer to be taken separately, concurrently and/or consecutively, in the form of:

1. Stoppages of the performances of work between 5 minutes and 24 hours in duration?

Yes No

2. A ban on working in excess of 36.75 hours per week?

Yes No

3. A ban on working outside the ordinary span of hours of 8.00am – 6.00pm?

Yes No

4. A ban on the performance of teaching duties?

Yes No

5. A ban on course and unit development?

Yes No

6. A ban on unit co-ordination and course co-ordination duties?

Yes No

7. A ban on preparation for Victoria University events including, but not limited to, Open Days and Graduations?

Yes No

8. A ban on the transmission of assessment results to the employer?

Yes No

9. A ban on participation in Victoria University events including, but not limited to, Open Days and Graduations?

Yes No

10. A ban on participation in staff appraisal processes?

Yes No

11. Stoppages and/or delay in the ordinary performance of work for the purpose of making statements to any person explaining the NTEU’s bargaining claims and why NTEU members are taking industrial action and bans on compliance with any direction to remove or refrain from such communications?

Yes No

12. A ban on meetings to discuss Student Evaluation of Teaching (SET) and/or Student Evaluation of Unit (SEU) results?

Yes No

13. Adopting a practice whereby a person who returns an item to the library is treated as if they have paid any fines associated with their account?

Yes No ”

[6] It is not in contention between the parties that some of the fundamental requirements for the Commission to determine in order to issue a protected action ballot order have been met. In particular that the NTEU is entitled, by virtue of s.437(1) of the Act to make an application and that it has otherwise made such an application and complied with the other requirements in s.437. It is also not in contention between the parties that the questions proposed to be put to employees in a ballot are consistent with the requirements of the Act and capable of being put to employees.

[7] Notwithstanding this agreement between the parties on some of the essential matters, Victoria University contests two matters which now need to be determined through this decision. The first of those matters is whether the NTEU has been, and is, genuinely trying to reach an agreement with Victoria University (s.443(1)); and the second matter is, in the event an order is made which leads to a successful ballot, whether there are exceptional circumstances justifying the period of written notice required by s.414(2)(a) before the commencement of protected industrial action to be extended from three working days to seven working days.

[8] When it became apparent in the initial stages of this application that the proposed order was contested by Victoria University, the matter was referred to me to be dealt with and a short hearing was convened on Wednesday, 26 September 2018. In the course of that hearing submissions and evidence were received from the NTEU in form of a witness statement from Dr Paul Adams, Victoria University NTEU Branch President and a statutory declaration from Michael M. Michael, Managing Director of the proposed protected action ballot agent, Cirrena IVS Pty Ltd. Neither Dr Adams nor Mr Michael were required for cross-examination and their written evidence was admitted without factual contest. The Respondent, Victoria University provided submissions and evidence from Michael Haritou, the University’s Workforce Transformation Strategic Lead.

[9] The NTEU was represented by its industrial officers, Emma Barnes and Campbell Smith. Victoria University was represented by lawyers after permission was given by me for that purpose by Nick Ruskin and John Monroe, 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.

LEGISLATION

[10] In considering this application 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).

(4) 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.”

CONSIDERATION

[11] As referred to above, the only matters in contest between the parties are whether the Commission can be satisfied that the NTEU complies with the provisions of s.443(1)(b) of the Act with it genuinely trying to reach agreement; and whether, pursuant to s.443(5) there are exceptional circumstances for there to be in a protected action ballot order requiring a longer period of notice than three working days in the event of a notification of protected industrial action.

[12] I turn to consider each of these matters.

s.443(1)(b) – genuinely trying to reach agreement

[13] It is argued by Victoria University that the Commission cannot be satisfied that the NTEU is genuinely trying to reach agreement two reasons. Firstly, it is argued that the NTEU has not sufficiently put to Victoria University the scope of its proposed agreement, at least in respect of the possibility that the agreement may apply to TAFE teachers as well as university academics and professional staff and that it has not consistently maintained its claim in that regard. Further it is argued that the NTEU has insufficiently particularised its claims in respect of TAFE teachers.

[14] The evidence before the Commission about the claim that TAFE employees be included within bargaining includes:

•  That having sent its log of claims to Victoria University on 12 March 2018 there was a first formal bargaining meeting on 13 March 2018 at which the NTEU requested the University indicate what its intentions were in replacing the TAFE Agreement and that:

•  we asked whether the University intended on joining the negotiations for a replacement to the Victoria TAFE Teaching Staff Multi-Enterprise Agreement 2015 (MEA Negotiations). During these discussions, the NTEU stated its preference for a unified agreement that expands coverage to TAFE teaching staff. To the best of my recollection, Mr Haritou responded on behalf of the University and stated that they would take that issue on notice”; 3

•  At the following bargaining meeting on 27 March 2018, the University representative, Mr Haritou, “confirmed that the University intended on joining the MEA Negotiations. During this meeting the NTEU reiterated its preference for an expanded coverage clause to include TAFE teaching staff”; 4

•  On 19 June 2018 the NTEU sent Victoria University a proposed coverage clause which was in the following terms;

•  Coverage and Parties

•  The parties to this Agreement are Victoria University and the National Tertiary Education Union (NTEU).

•  This Agreement covers and applies to:

•  Victoria University,

•  The National Tertiary Education Union (NTEU), and

•  All academic, teaching and professional staff of the University other than:

•  Vice-Chancellor, Deputy Vice-Chancellors, Pro Vice-Chancellors and Vice Presidents.” 5

•  Dr Adams, who was not cross-examined about his evidence stated that in the meeting on 19 June 2018 the NTEU “presented and discussed its position with respect to coverage” 6. Mr Haritou recollected the situation somewhat differently, believing that there was imprecision on the subject of what “teaching” may have been a reference to, although there was some, but apparently insufficient clarification in the meeting on 19 June 2018 by the NTEU. Mr Haritou said in his written witness statement that “the NTEU clarified that "teaching" was a reference to the teachers, including Trade teachers and senior educators currently covered by the TAFE Agreement”,7 but in his oral evidence his recollection of clarity did not extend so far as a wider NTEU coverage objective;

“MS BARNES: So at least, at the latest, so the day of 19 June, you were clear what the union's position was in respect of seeking a unified agreement that expanded coverage to TAFE teachers, correct? All I was clear about was that you had a preference to cover TAFE teachers. Beyond that I didn't have any clarity, no.

Following that meeting did you receive any indication from the union whether that be at the meetings that followed 19 June, or by way of written correspondence, that you viewed as the union revising its position in respect of scope? It was never mentioned again, nor was it mentioned as a critical determiner for progressing bargaining, and there was a number of exchanges between the university and the union to that effect.” 8

•  There was further bargaining at least on 28 and 29 June 2018, and again on 19 July 2018 and 22 August;

•  In 22 August 2018 meeting bargaining reached an impasse, with Mr Haritou’s recollection being:

•  the final meeting on 22 August 2018, the sides discussed their key claims and those issues on which agreement was required to avoid an impasse. No mention was made at this meeting or any meeting following 19 June 2018 of the view that the VU Agreement should also cover TAFE teachers and senior educators.” 9

[15] Victoria University puts forward that the claim that the scope of the proposed agreement should cover both academics and professional staff as well as TAFE staff was initially raised at an early stage in the bargaining but appears not to have been consistently maintained by the NTEU since that time:

“2.6 The Applicant has only raised the issue of a single agreement to replace both the VU Agreement and the TAFE Agreement on three brief occasions early in the bargaining process for the replacement to the VU Agreement:

•  at the initial bargaining meeting on 13 March 2018, in which the Applicant cursorily raised its view that TAFE teachers should also be covered by the replacement to the VU Agreement;

•  at the bargaining meeting on 27 March 2018, at which the NTEU noted they would prefer the agreement covered TAFE educators; and

•  in a draft coverage clause the Applicant sent to the Respondent on 12 June 2018, the intended coverage of which was not apparent but was discussed at a bargaining meeting on 19 June 2018.

•  There have been 4 bargaining meetings, including 2 full-day meetings and one half-day meeting, since the issue of the scope of the proposed agreement/s was last raised by the Applicant.

•  In particular, the issue was not discussed at the most recent bargaining meeting on 22 August 2018, at which Dr Adams states that "both sides discussed their core claims".

•  Further, at no point has the Applicant sought a scope order in respect of the claim that a single agreement should replace both the VU Agreement and the TAFE Agreement.” 10

[16] Similarly, Victoria University put forward that there has been no log of claims received from the NTEU about TAFE teachers and senior educators with it being said as well that the NTEU has not responded to the University’s draft enterprise agreement. 11

[17] Determination of the objection raised by Victoria University rests on the foundation of now well-settled principles on the subject of whether or not an applicant for a protected action ballot order is genuinely trying to reach agreement. Included within an extensive review of the principal cases on the subject, the Full Bench in the matter of Esso v AMWU & Others 12 (Esso) found:

“[54] The reference to the Commission being ‘satisfied’ means that whether or not the requisite circumstance exists is a discretionary decision. Section 443(1)(b) directs attention to the conduct of the applicant. The expression ‘has been, and is’, imports temporal considerations. The Commission’s attention is thereby directed to the applicant’s prior conduct at the time the application for a protected action ballot order is determined. 13 Given the context the reference to ‘an agreement’ is plainly a reference to an enterprise agreement within the meaning of Part 2-4 of the FW Act. The clear inference from s.172(1) is that the substantive terms of enterprise agreements should be confined to permitted matters, though the Commission is not required to scrutinise each agreement to ensure that all its terms are about permitted matters14 and the statutory requirements for the approval of an agreement (ss 186-187) make no express reference to the concept of permitted matters (also see s.253).

[55] Section 443(1)(b) does not contain any words which limit the circumstances in which the Commission may be satisfied that an applicant ‘has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted’. Further, the Explanatory Memorandum to what became s.443 supports the proposition that the legislature did not intend that any one factor would necessarily be determinative of the question of whether the applicant is genuinely trying to reach an agreement with the employer. The relevant parts of the Explanatory Memorandum to what became s.443 states:

1771. For joint applications, each applicant must be and must have been, genuinely trying to reach an agreement with the relevant employer. A finding by FWA that there is no majority support for collective bargaining is not of itself intended to be determinative of the question of whether the applicant is genuinely trying to reach an agreement with the employer.

1772. It could be the case that an applicant engaged in pattern bargaining (as defined in clause 412) in relation to the relevant employer would not be genuinely trying to reach an agreement, based on the indicia listed in subclause 412(3) (e.g., the applicant may not have been prepared to take into account the individual circumstances of the employer in bargaining for the agreement). (emphasis added)

[56] Neither of the paragraphs set out above support the proposition that it was intended that any one factor would be determinative of the issue in s.443(1)(b).

[57] Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU 15; JJ Richards No.116; Alcoa17; JJ Richards No.218; and Farstad19).

(references from original)

[18] The context of the decision within Esso related to whether or not there could be a finding of genuinely trying to reach agreement where there had been a pursuit of claims about non-permitted matters. The decision in Esso included consideration of the judgement of the Full Court of the Federal Court of Australia in the matter of JJ Richards & Sons & Anor v Fair Work Australia & Anor 20 (JJ Richards) in which the Court was required to consider a subject matter closer to that presently before the Commission and in particular whether the relatively narrow exchanges between two bargaining parties amounted to “genuinely trying to reach an agreement”. The judgement of Flick J summarises the extent of the exchanges between the parties:

“[37] On 24 December 2010, the Transport Workers’ Union wrote to J.J. Richards stating that it sought “to bargain for an enterprise agreement with your company covering your employees on the Canterbury Council contract”. The “major elements of the agreement” were thereafter summarised. On 7 January 2011, J.J. Richards responded stating that it did not “believe that bargaining for an enterprise agreement is viable …”. One of the reasons cited was that the contract under which the employees were employed was to cease on 26 February 2012.” 21

[19] After turning to matters of statutory construction Flick J then turned to whether the statutory criterion of there being a genuine endeavour to reach agreement had been enlivened:

“[55] The terms of s 443(1) impose only two express statutory constraints upon the mandatory obligation otherwise imposed upon Fair Work Australia to make a protected action ballot order: one constraint is that there must be an application made under s 437 (s 443(1)(a)); the other is that Fair Work Australia must be “… satisfied that each applicant has been, and is, genuinely trying to reach an agreement …” (s 443(1)(b)).

[56] It is not considered that any question arises of implying any further constraint into the operation of s 443(1) other than the two which have been expressly identified by the Legislature. Indeed, to attempt to do so would confront the difficulty of reading into a statutory provision words which are not there. Any such attempt would improperly propel the Court from its accepted role of interpreting the will of the Legislature into the territory of itself redrafting legislation.

[57] The difficulty presented is to interpret the phrase employed in s 443(1)(b). Even in the absence of such further difficulties of construction as may be occasioned by the terms of ss 412 and 413, the content of s 443(1)(b) is perhaps not self-evident.

[58] It is ultimately concluded that s 443(1)(b) is to be construed such that Fair Work Australia cannot reach a state of satisfaction that an “applicant … is … genuinely trying to reach an agreement with the employer” unless:

● an applicant has approached the employer and informed the employer of the general ambit of that for which agreement is sought; and

● the employer has foreshadowed – even in the most general of terms – its attitude as to the proposed agreement.

More may be required. Much may well depend upon the factual scenario in which the terms of s 443(1)(b) are to be applied. But such a minimum statement of that which is required is sufficient to dispose of the present Application. Contrary to the submissions advanced on behalf of the Applicants, the terms of s 443(1)(b) do not require:

● bargaining to have commenced within the meaning of and for the purposes of s 173, found within Pt 2-4 of the Fair Work Act.

[59] So much, it is concluded, follows from the natural and ordinary meaning of the phrase “trying to reach an agreement…”. It is difficult to conclude that any person can try to reach an agreement with another in the absence of a disclosure of that for which consensus is sought. One person may wish to reach an agreement with another. But, until the general content of the proposed agreement is disclosed, it cannot be said that he has even attempted to reach an agreement. Until disclosed, it is not known whether the other person will readily embrace the proposed agreement or shun it or (perhaps) embrace the concept of an agreement but wish to vary one or other of its terms. Until disclosed, the person seeking agreement has not even tried to solicit the response of the other. Unless the disclosure is genuinely with a view to reaching agreement, it could well be said that the attempt to reach an agreement falls short of a person even trying to reach agreement. The addition of the word “genuine” – on one approach to construction – perhaps adds little. But the addition of that term serves to emphasise the importance of a person actually trying to solicit agreement. Until a proposed agreement has been disclosed to the prospective parties, and a response solicited, an applicant has not even tried to reach agreement – let alone genuinely tried to reach agreement.

[60] The Transport Workers’ Union, in the present proceeding, satisfied that requirement by writing to J.J. Richards on 24 December 2010. Rightly or wrongly, J.J. Richards indicated its response in the terms it did in its letter dated 7 January 2011. That exchange of correspondence was sufficient to satisfy the precondition to the exercise of the power conferred by s 443(1).

[61] There is no other constraint expressly imposed by the Legislature which would (for example) require bargaining with an employer to have commenced.” 22

[20] In this matter, the NTEU advised Victoria University in March 2018 that its preference was to reach a single agreement replacing two agreements both beyond their nominal expiry date.

[21] The union enquired of Victoria University whether it intended on joining negotiations for a multi-enterprise TAFE agreement. In the context of industrial bargaining, in this matter that enquiry may only reasonably be regarded as akin to a question to Victoria University about whether it would accede to the NTEU’s preference for a single agreement. Victoria University communicated shortly after that it intended on joining the multi-employer negotiations. Again, in context, that communication may only reasonably be regarded as a denial of the NTEU’s claim.

[22] When the NTEU provided its proposed coverage clause to Victoria University that clause should reasonably have put the University on notice that a claim for coverage of “teaching” staff was being persisted with by the union. While it could be argued that the language of the proposed coverage clause is ambiguous with it referring to coverage of “academic, teaching and professional staff” since it is possibly to be construed as referring to academics who teach as well as to TAFE employees who teach, it would have been reasonably evident to skilled enterprise bargaining negotiators that at least one view of the proposed clause was that the reference to “teaching” staff was a reference to those presently under the TAFE agreement. In any event, by at least the date of the bargaining meeting on 19 June 2018, Mr Haritou concedes it was clarified “that "teaching" was a reference to the teachers, including trade teachers and senior educators currently covered by the TAFE Agreement”. 23

[23] After consideration of the facts associated with the bargaining between the parties as well as an application of those facts to the accepted meaning of the phrase “genuinely trying to reach agreement” I am satisfied that the requisite finding under s.443(1)(b) may be made. In this case there has been sufficient disclosure by the NTEU of its industrial objectives for a new agreement to cover TAFE staff as well as academic and professional staff, together with an initial refusal of that objective by Victoria University for it to be said that there has been satisfaction of the precondition in s.443(1) of the Act. The fact that there has not been much bargaining on the subject of TAFE Agreement employees or that Victoria University perhaps does not even want to bargain on the subject is not the point. Instead what is to the point is that the finding may be made, which I do, that the NTEU has been, and is, genuinely trying to reach an agreement with Victoria University about its employees otherwise covered by the two agreements.

s.443 (5) – exceptional circumstances – longer period of industrial action notification

[24] In the event that a protected action ballot order is made; the NTEU succeeds in some or all of the balloted questions; and industrial action is required to be notified in the way set out in s.414, s.414(2) provides the following regarding the period of notice to be given to an employer:

“Notice requirements for industrial action

Notice requirements--employee claim action

(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.

(2)  The period of notice must be at least:

(a)  3 working days; or

(b)  if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph--that period of notice.

Notice of employee claim action not to be given until ballot results declared

(3)  A notice under subsection (1) must not be given until after the results of the protected action ballot for the employee claim action have been declared.

…”

[25] Pursuant to s.443(5) of the Act Victoria University argue that there are exceptional circumstances justifying a longer period of notice than three working days with it submitting that instead the order should specify the longer period of seven working days’ notice.

[26] The arguments put forward by Victoria University in this regard surround the feature of the University’s teaching, said to be unique, in Australian universities at least, in which first-year students are streamed through a First Year College which works to four week teaching blocks at a separate campus instead of the usual semester and unified campus arrangement found in other universities. In its submissions, Victoria University put forward there are 160 four week courses conducted in the First Year College. 24

[27] The University contends two matters about this feature of its operations which combine to become the necessary exceptional circumstances for an extended notification period. Firstly, the nature of the four week First Year College teaching block is such that any disruption to the block may have a magnified disruptive effect; secondly disruptions are likely to have significant negative effects on students.

[28] There will, it is said, be disruptions on students not only in respect of teaching and other academic activity, but also disruption flowing from bans on coordination of those teaching and other academic activities. Not only will bans or limitations on matters such as teaching, core/unit development and release of results impact upon students, but pertinent to the coordination argument, it will be the case that an inability of the University to easily find replacements for academics or teachers involved in industrial action will in turn mean further or collateral impact on students. Mr Hariotu’s evidence on the subject included the following:

•  Six of the proposed ballot questions will, if passed, have significant effects on student welfare (1, 4, 5, 6, 8 and 11); 25

•  These forms of industrial action will “negatively impact” student welfare as they will:

“(a) prevent the teaching of students;

(b) prevent the coordination duties necessary for the University to take steps to

mitigate the impacts on students; and

(c) prevent the orderly and timely progression of students in their degrees.” 26

•  There will be two forms of impact from these industrial action as follows:

“37. The effect is particularly significant in respect of the First Year College.

38. All first year students at Victoria University are taught through the First Year College. The curriculum for the First Year College diverges substantially from other universities in Australia, in that each unit is taught in a block of 4 weeks, instead of in the standard 12 week "semester" format.

39. This structure means that the timelines for completion of a unit are tighter, and the impact on a student of missing a day of teaching are much greater. One or more days of missed teaching will mean that students miss a higher proportion of an entire subject (unit) than would likely be the case in other universities.

40. If bans on teaching duties and unit development duties are implemented and result in a first year student missing even a few sessions, that student may have significant difficulty catching up on the required work. Due to the fast turnaround of units within a 4 week block, there is little to no free time to catch up on missed work and the student may be unable complete that unit.

41. If a student fails to complete a unit in the First Year College there is limited capacity to repeat that unit. Where units are prerequisites for other units, or for completion of the First Year, then the student may not be able to progress to the following block or to second year. This will of course result in consequential delays to their course progression until the Block is offered again in 2019 for some students.

42. Similarly, an inability to obtain their results for units in one block is likely to prevent them from progressing to the next block where any of the units are prerequisites.

Impact of coordination bans

43. To mitigate the impact on students, the University's preferred approach is to arrange for the backfill of academics in the First Year College and in other year levels. However, these mitigation strategies require other University employees to complete unit and course coordination duties so as to arrange for supernumerary and/or sessional staff to undertake the delivery or the Block (Unit), including backfilling permanent staff.

44. Accordingly, the cumulative effect of bans on teaching duties and bans on coordination duties prevents the University from adequately mitigating the effect on student welfare.

45. In attempting to backfill roles in response to industrial action, the University takes a two step process:

(a) determining which roles will need to be backfilled; and

(b) recruiting sessional staff to fill those roles.

46. A part of the first step, the University will ask employees if they intend to take part in notified industrial action. If employees do not respond by a certain time, they are assumed to be taking part in the industrial action. The process of determining this typically takes approximately 3 days from notification.

47. Following this, to ensure the delivery and development of contingency resources, including sessional staff, would take a further 4 days for the First Year College, in particular.”

[29] Overall it is Mr Haritou’s assessment that seven working days’ notice will be required by the University in order to adequately mitigate the significant effect on student welfare arising from the six proposed ballot questions referred to. 27 The extended period of notice is required by the University to digest the impact of industrial action and to deploy contingency arrangements;

“And why do you believe that an additional four days would assist in addition to the three days contemplated by the statute will assist the university? Yes, again it's the bundle of industrial action that is being proposed. If you look at that bundle of industrial action from stoppages to bans on teaching to bans on coordination and the withholding of results, and identifying which staff members will take one or more of those actions takes some time. We need to digest what that impact is so we can then appropriately deploy our contingencies to ensure that the student experience is maintained. It's not going to be perfect but it is - it will be much better, it's a more efficient and effective way to ensure that the welfare of students is maintained.” 28

[30] In the matter of NTEU v Charles Darwin University 29 the Full Bench considered the basis upon which a decision pursuant to s.443(5) may be made. In the course of that decision the Full Bench referred to the phrase “exceptional circumstances” carrying its ordinary meaning with the determination in a particular case involving an evaluative judgement, setting out essentially three bases upon which the Commission would need to be satisfied before extending the period:

“[21] The meaning of “exceptional circumstances” in the context of s.463(5) of the Workplace Relations Act 1996 (WR Act) was discussed in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Postal Corporation 30. In the case, Lawler VP said:

“[10] … In summary, the expression “exceptional circumstances” requires consideration of all the circumstances. To be exceptional, circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare. Circumstances will not be exceptional if they are regularly, or routinely, or normally encountered. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional. It is not correct to construe “exceptional circumstances” as being only some unexpected occurrence, although frequently it will be. Nor is it correct to construe the plural “circumstances” as if it were only a singular occurrence, even though it can be a one off situation. The ordinary and natural meaning of “exceptional circumstances” includes a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual, special or uncommon.

[11]However, it is important to note that when considering whether to make an order pursuant to s.463(5) the Commission is not simply concerned with determining whether there are exceptional circumstances. There must be exceptional circumstances “justifying” the specification of a longer notice period. The notion of justification is critical and calls for a consideration of the purpose of the notice required by s.441.” 31

[22] Section 463(5) of the WR Act is in all material respects the same as s.443(5) of the Act. We consider the discussion extracted above is apposite to the phrase “exceptional circumstances justifying” in s.443(5).

[23] The determination of whether the circumstances in a particular case are ‘exceptional’ involves an evaluative judgement. A proper approach to the exercise of the Commission’s discretion under s.443(5) requires first that a member identify or make findings about the particular facts or circumstances in relation to the proposed industrial action which are said inform the evaluative judgement that such factors or circumstances are exceptional circumstances. The phrase “exceptional circumstances” carries its ordinary meaning.

[24] Secondly, there must be a consideration whether the identified exceptional circumstances are circumstances “justifying” a longer notice period. This also involves an evaluative judgement made on the basis of probative material. The use of the verb “justifying” in s.443(5) signifies that the identified exceptional circumstances must show or prove that it is reasonable or necessary or the circumstances warrant or provide good reason to require a longer period of written notice.

[25] Thirdly, if the member is satisfied there are exceptional circumstances justifying a longer period of notice, there must be a consideration of whether to exercise the discretion and, if so, the additional period of notice that should be given in the circumstances (noting the maximum period).

(references from original)

[31] In this matter the particular facts or circumstances to which Victoria University refers firstly surround the First Year College and secondly how those circumstances, together with the disruption which would inevitably flow from protected industrial action uncontrolled by remedial action by the University in the form of implementation of alternative arrangements, would negatively impact upon students, with the university’s objective being to maintain, as best it may, the “student experience”. 32

[32] The factual circumstances of the University’s First Year College may be viewed to an extent, but insufficiently so, as being out of the ordinary course, unusual, special or uncommon. That is the factual circumstances associated with the First Year College could possibly, in combination with other matters provide the requisite exceptional circumstances, but on their own do not, at least on the basis of the evidence in this case.

[33] As I understand the situation, students are taught intensively within a four week block and may not move from one block to another unless they have successfully completed the first, at least in relation to certain subject linkages. Any disruption within the four week block obviously carries with it the implication that the period of four weeks might have to be extended somehow as well as the likelihood that it may be difficult within that period to make alternative teaching or assessment arrangements. It also appears to be the situation that those academics who teach within the four week blocks also teach elsewhere in the University, meaning that the disruptive implication of protected industrial action by those employees will both not be confined to the teaching of four week blocks but will also extend across many more employees than the raw number of academics required to teach subjects in the First Year College.

[34] It is also the case, at least as I understand the evidence, that there will be a compounding effect of protected industrial action associated with teaching the First Year College’s four week blocks because not only is there the potential for academic staff to take protected industrial action in relation to the blocks but there is also the potential for academic coordinators, not directly involved in the four week blocks, to impose their own protected industrial action delaying, restricting or preventing the design or delivery of contingency arrangements to overcome the protected industrial action being experienced within the four week blocks.

[35] It is to be accepted that this factual base shows circumstances which may be regarded as being out of the ordinary course, unusual, special or uncommon.

[36] The University submits that its First Year College arrangement is unique within Australia, with the NTEU not contesting that proposition or that its arrangements with the four year week block teaching methodology are a point of difference to other Australian universities. Extending from that situation is what I refer to as the compounding effect of the impact of protected industrial action within the first year four week blocks together with a somewhat limited opportunity in time at least to take mitigating action, if needed, with the potential for any mitigation measures to be further impacted upon by other protected industrial action in academic coordinators. Those matters together may be regarded as something somewhat different not only from other Australian universities, but also other employees in other industries experiencing protected industrial action. That is the prospect that protected industrial action in one work unit may be magnified because of corresponding protected industrial action or other work unit could well be the situation which is out of the ordinary course, unusual, special or uncommon.

[37] While that is the case, I am less persuaded that the circumstances pointed to by the University of student disruption meet the considerations of exceptionality. Whilst it may be predicted that, as customers of the University, students will experience disruption from protected industrial action and that their reaction to that disruption will range from mild annoyance to potentially even stronger concerns or reactions, the proposition set out within the Respondent’s submissions that there might as a result be a “deleterious impact on student welfare” 33 is not made out. Mr Haritou’s evidence is that the six forms of industrial action that he considers will have significant effects on student welfare are said by him only to “negatively impact student welfare” in three respects; preventing the teaching of students; preventing coordination activities in order to mitigate the impact of protected industrial action; and preventing the progression of students on their degrees.34 Whilst it is, of course, possible that these things may or will result from protected industrial action of the form foreshadowed by the NTEU and that such will cause students to think all sorts of things about Victoria University, experience all manner of emotions as a result and otherwise potentially create a serious reputational risk for the University, those matters are somewhat different propositions from those foreshadowed by the Full Bench in NTEU v CDU. That decision points to the ordinary meaning of the phrase “exceptional circumstances” which was held in CEPU v Australian Postal Corporation to include “a combination of factors which, when viewed together, may reasonably be seen as producing a situation which is out of the ordinary course, unusual special or uncommon”35.

[38] On the state of the evidence before me at this time the anticipated impact upon students is not much more than the disruption that may be expected among any customer base faced with limitations on that which they expect or have paid for.

[39] On this basis I am unable to find that there are exceptional circumstances within the meaning of s.443(5) of the Act. Therefore it becomes necessary for me to consider the second or third limbs of the determination set out within NTEU v CDU.

[40] Since the proposed protected action ballot order is not the Australian Electoral Commission, I must also be satisfied of the criterion within s.444(2) of the Act, elaborated upon within regulation 3.11, relating to the protected action ballot agent and persons engaged by it, being fit and proper persons. Suitable evidence about the status of the protected action ballot agent has been filed by the NTEU. As a result, the union submits that the statutory criteria in respect of the agent have been made out and Victoria University makes no submissions on the subject. I am satisfied because of the material since filed by the Applicant about the protected action ballot agent that the requirements of s.444 as well as the regulations have been met and that it is appropriate for me to make an order including Cirrena IVS Pty Ltd as the protected action ballot agent.

[41] After consideration of all of the matters put to the Commission about the proposed question elements, I am satisfied that the question elements are within the power of the Commission to order and that it is otherwise appropriate to make the orders sought by each of the Applicants.

[42] Having determined these matters, and being satisfied that the requirements of s.443(1)(a) and (b) of the Act have been complied with, I must make a protected action ballot order, as sought by the NTEU. An order will be issued by the Commission consistent with the NTEU’s application.

[43] For the reason that I consider the amended description of the group of employees to be balloted to be less than grammatical, the order will be made for a ballot of employees described in the following manner:

“All academic, teaching and professional staff of Victoria University who will be covered by the proposed agreement and for whom the NTEU is their bargaining representative, other than the Vice-Chancellor, Deputy Vice-Chancellors, Pro Vice-Chancellors and Vice Presidents.

For the avoidance of doubt, teaching staff includes TAFE teachers.”

COMMISSIONER

Appearances:

Ms Emma Barnes and Mr Campbell Smith for the Applicant.

Mr Nick Ruskin and Mr John Monroe of K&L Gates for the Respondent.

Hearing details:

2018.

Melbourne:

26 September.

Printed by authority of the Commonwealth Government Printer

<PR700861>

 1   PR546815.

 2   PR573593.

 3   Exhibit A1, Witness Statement of Paul Adams, [5].

 4   Ibid, [6].

 5   Ibid, Attachment PA-2.

 6   Ibid, [8].

 7   Exhibit R2, Witness Statement of Michael Haritou, [18].

 8   Transcript, PN 103 – 104.

 9   Exhibit R2, [20].

 10   Exhibit R1, Amended Respondent's Outline of Submissions.

 11   Ibid, [2.15].

 12   [2015] FWCFB 210.

 13   Coles Supermarkets (Australia) Pty Ltd v AMIEU [2015] FWDFB 379 at [49].

 14   See paragraph 664 of the Explanatory Memorandum to the Fair Work Bill 2008.

 15   [2010] FWAFB 9441 at [93].

 16   [2010] FWAFB 9963 at [67] per Lawler VP and Bissett C.

 17   [2010] FWAFB 4889 at [24].

 18   [2011] FWAFB 3377 at [40]-[41].

 19   [2011] FWAFB 1686 at [6]-[11].

 20 [2012] FCAFC 53, (2102) 218 IR 454.

 21   Ibid.

 22   Ibid.

 23   Exhibit R2, [18].

 24   Transcript, PN 338.

 25   Exhibit R2, [35].

 26   Ibid, [36].

 27   Ibid, [48].

 28   Transcript, PN 220.

 29   [2018] FWCFB 4011.

 30   [2007] AIRC 848.

 31   Ibid at [10] – [11].

 32   Transcript, PN 185 – 187; 196 – 197.

 33   Exhibit R1, 3.8(c).

 34   Exhibit R2, [36].

 35   [2007] AIRC 848, [10].