National Tertiary Education Industry Union v Western Sydney University

[2025] FWC 3170

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Tertiary Education Industry Union
v

Western Sydney University

(B2025/1612)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 22 OCTOBER 2025

Proposed protected action ballot of employees of Western Sydney University – non-AEC ballot agent electronic voting

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 Western Sydney University (WSU or Employer).

On 22 October 2025, 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 Joshua Gava, Senior 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 WSU, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote 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 7 November 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR792907.

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, 12 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between the National Tertiary Education Industry Union (NTEU) and Western Sydney University (WSU) was heard by the Fair Work Commission on 22 October 2025. The NTEU applied for a protected action ballot order concerning certain employees of WSU under section 437 of the Fair Work Act 2009. The Commission was informed that WSU did not object to the application. Deputy President Wright decided to determine the matter based on the submitted documents without a hearing.

The primary legal issues in the case involved whether the NTEU had satisfied all the requirements for a protected action ballot under the Fair Work Act 2009, including the notification time and the genuine attempt to reach an agreement with the employer. Additionally, the court had to consider the appropriateness of the proposed ballot agent, Fair Vote Services Pty Ltd, and whether the ballot period was correctly set. The NTEU provided a declaration from Joshua Gava, Senior Industrial Officer, detailing the union's bargaining efforts and its genuine attempt to reach an agreement with WSU.

The Fair Work Commission determined that all requirements under section 443(1) of the Act were met, including the notification time. The Commission approved the use of Fair Vote Services as the ballot agent and set the closing date for voting as 7 November 2025. The decision established the ballot period for the purposes of section 448A(2) of the Act. The matter will be assigned to another Commission member to conduct a compulsory conciliation conference, with an order issued to require the attendance of bargaining representatives.

The Commission issued a separate order in PR792907 and likely issued directions to ensure the parties attended the conciliation conference prepared for meaningful negotiations. This decision concludes the application for the protected action ballot order, paving the way for the upcoming compulsory conciliation conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established