National Tertiary Education Industry Union v Victorian Tertiary Admissions Centre Limited

[2024] FWC 2789

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Tertiary Education Industry Union
v

Victorian Tertiary Admissions Centre Limited

(B2024/1305)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 8 OCTOBER 2024

Proposed protected action ballot of employees of Victorian Tertiary Admissions Centre Limited

This is an application by the National Tertiary Education Industry Union (NTEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Victorian Tertiary Admissions Centre Limited (VTAC or Employer).

On 7 October 2024, the Commission was advised that the Employer, in effect, did not object to 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 declaration of Rhidian Huw Thomas, Industrial Officer, setting out the steps taken by the NTEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with VTAC, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 22 October 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR780015.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 10 working days from the making of the Order and was the period established after consultation with the parties.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Tertiary Education Industry Union (NTEU) sought an order from the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot in relation to employees of the Victorian Tertiary Admissions Centre Limited (VTAC). The application was made to facilitate a potential industrial action by the employees, with the aim of resolving a dispute over an enterprise agreement. VTAC did not object to the application, allowing the Commission to proceed with the determination without a hearing.

The primary legal issue for the Commission was whether the NTEU had met the statutory requirements for holding a protected action ballot. This involved confirming that the union had genuinely attempted to reach an agreement with VTAC and that the prescribed notification period had elapsed. The Commission considered the declaration of Rhidian Huw Thomas, the NTEU's Industrial Officer, which detailed the union's efforts to negotiate with VTAC. Additionally, the Commission had to ensure that all procedural requirements under sections 443 and 468A of the Act were satisfied, including the appointment of TrueVote Pty Ltd as the authorised ballot agent.

In reaching its decision, the Commission found that the NTEU had indeed met the necessary criteria for a ballot, as evidenced by the declaration and the union's ongoing efforts to negotiate with VTAC. The Commission also established the closing date for voting in the ballot as 22 October 2024, ensuring compliance with the statutory timeframes. The Commission further mandated that a compulsory conciliation conference be held, overseen by another member, to facilitate meaningful negotiations between the parties.

Consequently, the Commission granted the NTEU's application and issued an order permitting the ballot to proceed. The order also set the closing date for voting and assigned the compulsory conciliation conference to another member of the Commission. The determination ensured that the employees would have the opportunity to vote on potential industrial action, while also providing a structured pathway for the parties to engage in further negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established