RMIT University v National Tertiary Education Industry Union

[2013] FWC 8829

[2013] FWC 8829Note: An appeal pursuant to s.604 (C2013/6733) was lodged against this decision - refer to [[2013] FWCFB 9549] dated 5 December 2013 for result of appeal.

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

RMIT University
v
National Tertiary Education Industry Union
(C2013/6705)

COMMISSIONER WILSON MELBOURNE, 11 NOVEMBER 2013

Application that industrial action by employees or employers stop etc — Alleged industrial action against RMIT University, 445 Swanston Street, Melbourne.

[1] RMIT University (RMIT) seeks an order pursuant to s.418 of the Fair Work Act (the Act) that industrial action by its employees stop. The application was made on 7 November 2013 and heard on 8 November 2013.

[2] Pursuant to s.420 of the Act, an Interim Order was issued by me on 8 November 2013 with effect from 6.00pm 8 November 2013. 1

[3] Section 420 requires that, as far as practicable, the Fair Work Commission (the FWC) must determine an application for an order under s.418 within 2 days after the application is made or, if unable to do so within that period, the FWC must within the same period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be). The section allows the FWC to not make an interim order if it is satisfied that it would be contrary to the public interest to do so. The section also provides that if the FWC decides to issue an interim order it does not have to specify the particular industrial action.

[4] I proceeded to issue an Interim Order for the reason that I was unable to determine the application within the period of two days allowed for within s.418 and I was satisfied it was not contrary to the public interest to issue an interim order.

[5] The background to this matter originates in negotiations for a replacement agreement to the Royal Melbourne Institute of Technology Academic and Professional Staff Union Collective Agreement 2010, which expired on 30 June 2012.

[6] The FWC made a Protected Action Ballot Order on 11 April 2013, 2 and the Australian Electoral Commission declared the results of the consequential ballot on 13 May 2013.3

[7] The Protected Action Ballot was put as a compound question and, so far as is relevant to this matter, the question and the ballot results, included the following (referred to from this point as sub-question (e)): 4

“Results

Do you, for the purpose of advancing claims in the negotiation of an enterprise agreement between the National Tertiary Education Industry Union and your employer, authorise industrial action, to be taken separately, concurrently and/or consecutively, in the form of:

...

e) Bans or partial bans on the recording, or transmission to the employer, of assessment results?

Number of voters approving the action (Yes votes) 592

Number of voters not approving the action (No votes) 129

Number of informal ballot papers 7

...”

[8] On 25 September 2013, the NTEU wrote to Professor M. Gardner, Vice-Chancellor RMIT, advising of various forms of industrial action that it intended to take from 1 October 2013. So far as is relevant to these proceedings, the notification included the following (referred to from this point as the Results Ban): 5

“Dear Professor Gardner

NOTICE OF INDUSTRIAL ACTION

Notice is given that, in addition to action previously notified, officers, employees and members of the NTEU intend to organise and engage in further industrial action in accordance with Part 3-3 of the Fair Work Act.

I hereby inform you that the nature of the industrial action, to be taken by members of the NTEU employed by RMIT, in the class of eligible employees described in the protected action ballot order handed down on 11 April 2013, is:

...

The following industrial actions commencing 8am on Tuesday 1 October 2013:

• An indefinite ban on the recording, or transmission to the employer of assessment results relating to offshore students provided that the ban will not be applied to the results of students who:

o are graduating students; or

o require such results for purposes of meeting Australian visa requirements; or

o are Australian citizens;

or in respect of results for which an exemption has been granted by the NTEU exemptions committee on the basis of the circumstances of the student.”

[9] The uncontested evidence of RMIT (in the form of evidence from Ms Suzanne Parker, Senior Manager of Academic Services) is that the Results Ban is in the course of implementation. 6

[10] RMIT submits the Results Ban is not authorised by the Protected Action Ballot Order for the reason it is inherently discriminatory. RMIT’s application to the FWC included the following submissions in relation to the subject: 7

“24. The current Results Ban applies only to the assessment results of offshore students, and specifically excludes the results of those who are Australian citizens. Accordingly, the Results Ban is inherently discriminatory in that it deliberately targets students who are not Australian.

25. Whilst industrial action provided for in the PABO Application included industrial action in the form of a ban on the recording or transmission of assessment results to RMIT, there was no indication in the PABO Application that the ban would be applied in a way that was inherently discriminatory. At the time of the protected action ballot, the employees were not given notice that any proposed industrial action would include discriminatory action.

26. Industrial action in the form of a ban that is inherently discriminatory is fundamentally different in nature from a ban that is not discriminatory. Such a view is consistent with the provisions of the Act, which display a clear legislative distinction between conduct that is discriminatory and conduct that is not discriminatory in a broad range of circumstances.”

[11] To illustrate the significance of anti-discrimination provisions within the Act, RMIT tabled in the hearing a document that summarised the provisions of the Act that dealt with discrimination. The document indicated 16 substantive provisions aimed at ensuring the Act and its operations prevent or limit the inappropriate or unlawful discriminatory effect of instruments or procedures operating under the Act. The table included reference to the anti-discrimination provision in the Objects of the Act and the provision dealing with the matters the FWC must take into account in performing its functions, which are as follows:

“3 Object of this Act

The object of this Act is to provide a balanced framework for cooperative and productive workplace relations that promotes national economic prosperity and social inclusion for all Australians by:

...

(e) enabling fairness and representation at work and the prevention of discrimination by recognising the right to freedom of association and the right to be represented, protecting against unfair treatment and discrimination, providing accessible and effective procedures to resolve grievances and disputes and providing effective compliance mechanisms; and

...

578 Matters the FWC must take into account in performing functions etc.

In performing functions or exercising powers, in relation to a matter, under a part of this Act (including this Part), the FWC must take into account:

(a) the objects of this Act, and any objects of the part of this Act; and

(b) equity, good conscience and the merits of the matter; and

(c) the need to respect and value the diversity of the work force by helping to prevent and eliminate discrimination on the basis of race, colour, sex, sexual preference, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin.”

(emphasis added)

[12] In reply, the NTEU submits the Results Ban is not discriminatory and is authorised by the Protected Action Ballot. It argued that the partial effect of the results ban was open to it on the face of the question approved by the ballot. A person reading the question should understand they were being asked to vote in favour not only of a comprehensive ban across the entire university in respect of the recording, or transmission to the employer, of assessment results, but also that they were being asked to vote in favour of a ban which might be applied partially in respect of certain operations or schools only. The NTEU argues there is no ambiguity within the question about this possibility.

[13] Section 418 provides as follows:

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[14] “Protected industrial action”, in accordance with s.408, includes “employee claim action” which is separately defined as follows;

409 Employee claim action

Employee claim action

(1) Employee claim action for a proposed enterprise agreement is industrial action that:

(a) is organised or engaged in for the purpose of supporting or advancing claims in relation to the agreement that are only about, or are reasonably believed to only be about, permitted matters; and

(b) is organised or engaged in, against an employer that will be covered by the agreement, by:

(i) a bargaining representative of an employee who will be covered by the agreement; or

(ii) an employee who is included in a group or groups of employees specified in a protected action ballot order for the industrial action; and

(c) meets the common requirements set out in Subdivision B;

And

(d) meets the additional requirements set out in this section.

Protected action ballot is necessary

(2) The industrial action must be authorised by a protected action ballot (see Division 8 of this Part).

... ((3) to (7) omitted)

[15] As a result of s.409, industrial action will only properly be “employee claim action” if it has been authorised by protected action ballot.

[16] The question in this particular matter, of whether an order stopping industrial action should be granted, turns on whether the Results Ban has been authorised by the Protected Action Ballot.

[17] RMIT argues that if it were intended by the NTEU to take industrial action with a discriminatory effect, the scheme of the Act is to require employees to have been provided with more than the words of sub-question (e) in order to form the view about the proposed action.

[18] RMIT notes the Full Bench decisions on the subject of the making of a Protected Action Ballot Order in the matters of John Holland Pty Ltd v “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), 8 and Mornington Peninsula Shire Council.9

[19] The Full Bench in John Holland established that in most cases the drafting of questions to be put in a Protected Action Ballot Order will be a matter for the applicant, but qualifies that determination by drawing attention to the risks of how a question is framed:

“[19] Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.”

[20] That there are risks associated with the framing of questions and acting on the purported consequential authorisation in the ballot is, or should be, self evident. The questions can, in hindsight, be ambiguous or not directed to where they have most tactical effect, or the words of the question may be misaligned with what is really proposed and for which authorisation by the ballot is required.

[21] Balanced against the potential risks of how questions put to balloted employees might be framed, are the significant protections afforded by s.415 to protected industrial action authorised by a question approved in a ballot. The section provides as follows:

“415 Immunity provision

(1) No action lies under any law (whether written or unwritten) in force in a State or Territory in relation to any industrial action that is protected industrial action unless the industrial action has involved or is likely to involve:

(a) personal injury; or

(b) wilful or reckless destruction of, or damage to, property; or

(c) the unlawful taking, keeping or use of property.

(2) However, subsection (1) does not prevent an action for defamation being brought in relation to anything that occurred in the course of industrial action.”

[22] For the purposes of the Act, the immunity is from what would otherwise be the protected industrial action’s contravention of any number of provisions of the Act, including the General Protections provisions, which of course provide significant anti-discrimination protections.

[23] The Explanatory Memorandum to the Fair Work Bill 2008 expands on the immunity as follows:

“Clause 415 – Immunity provision

1673. This clause confirms the extent of the immunity that applies to protected industrial action. It is equivalent to section 447 of the WR Act. Where a person is engaged in protected industrial action, immunity from civil liability exists in respect of an action under any law (whether written or unwritten) in force in a State or Territory. This includes common law actions. The immunity does not apply to action involving personal injury, wilful or reckless destruction of, or damage to, property or unlawful taking, keeping or use of property (subclause 415(1)).

1674. The immunity provision does not prevent an action for defamation being brought in relation to anything that occurred during the industrial action (subclause 415(2)).

1675. Other safeguards attach to protected industrial action. For example, an employer is prohibited from taking adverse action (as defined by clause 342) against an employee (e.g., dismissing or threatening to dismiss the employee) because the employee exercises a workplace right (as defined by clause 341) (see Part 3.1 (General protections)).”

[24] The argument put forward by the NTEU is that the ballot’s sub-question (e) plainly identifies to members being balloted that the bans actually to be put into effect could well be something other than a ban applying to the operations of the entire university.

[25] I accept that the sub-question does this. Of course a partial ban, which is referred to in the ballot question, will necessarily have effect only in certain respects. A permissible partial ban on the recording, or transmission to the employer, of assessment results may well include a ban on the results of the Engineering School but not the Business School; or it might include a ban on the results of exams taken on Tuesday but not on Wednesday.

[26] Necessarily though, the things which are authorised as protected industrial action are only those things which have been authorised by the protected action ballot. 10 Employees may only have put to them in the ballot those questions authorised by the Protected Action Ballot Order and an Order may only be made which specifies in the question or questions to be put to the employees who are to be balloted “the nature of the proposed industrial action”.11

[27] Within the context of the legislative objects; obligations in respect of the performance of the FWC’s functions; and the requirements for protected action ballots referred to, it is evident that “the nature of the proposed industrial action” requires a level of specification in each question, or part of question, that would reasonably inform the voter of what is intended in order that they may make an informed vote.

[28] The significance of the Act’s anti-discriminatory purpose together with the very wide ranging immunities granted by the Act to the industrial action which is authorised by a protected action ballot readily gives rise to this proposition. To find otherwise would potentially lead to partial bans being implemented in any manner of provocative or offensive ways without prior identification in the Protected Action Ballot Order.

[29] For example, could it be said that a permissible partial ban may be to ban the recording, or transmission to the employer, of assessment results relating only to women or only to indigenous students? Could be said, in relation to another question that was put to employees and carried in the ballot, sub-question (d), 12 that it was permissible for a partial ban on responding to enquiries, including by phone, email or in person, but only in respect of enquiries received from persons who are not members of a union?

[30] Very plainly, partial bans of such a character, which may well only be able to operate with the protection of the immunity provisions of s.415, are very different to what a reasonable person would consider to be meant by the phrasing actually used within sub-question (e) and several of the other questions put to the balloted employees. There is nothing within the phrasing used in the questions in the protected action ballot which would signal to a reasonable person that they were being asked to approve industrial activity which might have a discriminatory effect.

[31] Accordingly, I agree with the RMIT’s submission that, had it been the intent of the NTEU to put in place bans that could be inherently discriminatory, such intention would have required separate identification in the Protected Action Ballot Order application. The first purpose of such separate identification would have been to allow a proper argument before the FWC Member hearing the Protected Action Ballot Order, which may well include a debate about whether the question required amendment, or was somehow prevented from being included in the Order. In this respect it is noteworthy that the Full Bench in John Holland did not find that in all cases, the drafting of the questions will be a matter for the applicant, but rather found that this was the proposition in most cases. The second purpose would be to test whether employees might be willing to consider such industrial action, if the FWC was satisfied the question was either permissible under the scheme of the Act, or required to be put because of the findings in John Holland if the Applicant pressed its inclusion in the Protected Action Ballot Order.

[32] I find that the question put to employees in the protected action ballot did not contain any aspect that would allow a reasonable person to view the proposed action as operating in a way that was inherently discriminatory.

[33] Having made this finding, it is then necessary to consider whether the industrial action as actually notified is inherently discriminatory.

[34] As referred to above, the principal application of the ban is in respect of the assessment results of offshore students, with four limited exceptions to the ban — graduating students; students needing the results in order to meet Australian visa requirements; students who are Australian citizens; and students exempted by the NTEU exemptions committee. Of the four limited exceptions, I find that the exemption from the ban in respect of students who “are Australian citizens” is inherently discriminatory and therefore not authorised by the Protected Action Ballot. By exempting from the ban Australian citizens, the ban is discriminatory against people who are not Australian citizens, which amounts to a discrimination on the grounds either of the student’s race, colour, national extraction or social origin.

[35] Having found that the industrial action was not authorised by the Protected Action Ballot, it follows that I must make an Order that the industrial action stop, not occur or not be organised.

[36] RMIT submitted that if I found an Order should be made, it should operate for a period of three months, whereas the NTEU submitted that the duration of the Order should be three weeks.

[37] Having considered the circumstances of the application and the material provided to me in the course the hearing, I am satisfied that the Order should be made for a duration of three months.

[38] An order terminating the Interim Order and issuing a new Order in the terms set out above is issued at the same time as this Decision.

COMMISSIONER

Appearances:

Mr M McDonald SC with Mr J Tracey for RMIT.

Mr E Burgio with Ms L Galefor the NTEU.

Hearing details:

2013.

Melbourne:

8 November

<Price code C, PR544354>

 1   PR544350.

 2   PR535551.

 3   Declaration of result, Protected Action Ballot, NTEU and RMIT University, Matter Number: B2013/79, 13 May 2013.

 4   AEC, Declaration of Result, 13 May 2013.

 5   RMIT Application for an Order to Stop Etc (Unprotected) Industrial Action, (Form F14), Attachment C.

 6   Exhibit RMIT 1.

 7   RMIT Application.

 8   [2010] FWAFB 526.

 9   [2011] FWAFB 4809.

 10 Fair Work Act, s.409(2).

 11 Fair Work Act, s.443(3)(d).

 12   The sub-question read: “d) Bans or partial bans on responding to enquiries, including by phone, email or in person?”.

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