National Tertiary Education Industry Union v Western Sydney University

[2022] FWC 712

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Tertiary Education Industry Union
v

Western Sydney University

(B2022/237)

VICE PRESIDENT CATANZARITI

BRISBANE, 30 MARCH 2022

Proposed protected action ballot of employees of Western Sydney University

This is an application by the National Tertiary Education Industry Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Western Sydney University (Respondent).

On 25 March 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Joshua Michael Gava of the Applicant declared on 24 March 2022, setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An Order has been separately issued in PR739864.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission, under the Fair Work Act 2009, considered an application by the National Tertiary Education Industry Union against Western Sydney University. The union sought a protected action ballot order concerning certain employees of the university, relating to issues that had arisen during their bargaining process. Western Sydney University did not oppose the application, leading to the matter being determined without a hearing.

The central legal issues revolved around the union's right to hold a protected action ballot under section 437 of the Fair Work Act. The union needed to demonstrate that it had genuinely attempted to reach an agreement with the university, as required by section 443(1) of the Act. Additionally, the union had to show that a notification period for the proposed agreement had been met.

The Vice President of the Fair Work Commission, Catanzariti, examined the material provided, including the statutory declaration from Joshua Michael Gava of the union, which detailed the bargaining process and efforts to reach an agreement with the university. The Vice President concluded that the union had met the requirements for a protected action ballot order. The application was approved, and an order was issued in PR739864.

The Fair Work Commission issued an order in PR739864, allowing the National Tertiary Education Industry Union to proceed with the protected action ballot concerning the employees of Western Sydney University. The university's lack of opposition to the application facilitated a swift resolution of the matter.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established