Royal Melbourne Institute of Technology v National Tertiary Education Industry Union & Patricia McLaughlin
[2024] FWCFB 20
•1 FEBRUARY 2024
[2024] FWCFB 20
The attached document replaces the document previously issued with the above code on 1 February 2024.
As an amendment to the appearances, the words “and S Cheligoy” have been inserted in the following sentence: “B Avallone and S Cheligoy of counsel for the Royal Melbourne Institute of Technology”.
Charlotte Coburn
Associate to Deputy President Gostencnik
Dated 28 March 2024
| [2024] FWCFB 20 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.604 - Appeal of decisions
Royal Melbourne Institute of Technology
v
National Tertiary Education Industry Union & Patricia McLaughlin
(C2023/7982)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 1 FEBRUARY 2024 |
Appeal against decision [2023] FWC 3406 of Commissioner Connolly at Melbourne on 19 December 2023 in matter number C2023/7830
Royal Melbourne Institute of Technology (RMIT), a university declared to have been established on 1 July 1992 and as constituted by the Royal Melbourne Institute of Technology Act 1992 (Vic) as in force immediately before its repeal, is a body politic and corporate by its name continuing in existence under the Royal Melbourne Institute of Technology Act 2010 (Vic).[1] The National Tertiary Education Industry Union (NTEU) is an employee organisation registered under the Fair Work (Registered Organisations) Act 2009 (Cth) and is entitled to represent the industrial interests of certain of RMIT’s employees. Dr Tricia McLaughlin is employed by RMIT, a member of the NTEU and its RMIT Branch President. RMIT Training Pty Ltd (RMIT Training) is a separate legal entity, wholly owned by RMIT, which operates a language education business and employs various persons as educators, test operations and corporate services employees. Another wholly owned RMIT entity is RMIT Online Pty Ltd (RMIT Online), which conducts a business of offering and providing various short courses and degree courses of study online and employs various persons to facilitate its business.
On 21 February 2023, RMIT Training gave its employees a notice of employee representational rights (NERR).[2] The NTEU was a bargaining representative. It sought to negotiate on the scope of the proposed agreement – that it cover RMIT Training, RMIT and RMIT Online employees.[3] Bargaining continued. RMIT provided its academic and professional staff with a NERR on 15 May 2023 and the NTEU sought to bargain for an expanded scope, with coverage to include RMIT Training and RMIT Online employees. [4]
However, on 5 June 2023, the NTEU altered its bargaining position on scope, by seeking to reach agreement for a single enterprise agreement covering RMIT and RMIT Training employees.[5]
Subsequently, the NTEU applied for, and on 24 July 2023 it was granted a protected action ballot order.[6] The order required employees of both RMIT and RMIT Training Pty Ltd who would be covered by the proposed agreement and were represented by the NTEU in its capacity as a bargaining representative to be balloted.[7] Because RMIT Training is a related body corporate of RMIT, it is a related employer for the purposes of s 172A of the Fair Work Act 2009 (Cth) (Act). The order treated the bargaining process as relating to a proposed single-enterprise agreement covering both employers and there was no need to ballot the employee groups of each employer separately.
The question on which employees were asked to vote in the ensuing ballot, relevantly was:
“In support of reaching an Enterprise Agreement with [RMIT and RMIT Training], do you authorize industrial action again (sic) your employers to be taken separately, partially, concurrently, and/or consecutively, on any number of occasions, in the form of:” various enumerated forms of industrial action.[8]
The ballot was conducted between 31 July 2023 to 7 August 2023[9] and the results declared on 7 August 2023.[10] The cohort of eligible voters numbered 1478,[11] comprising approximately 40 RMIT Training employees.[12] Of that cohort, about 76% or 1128 employees voted[13] and between 83.60% and 97.70% of voting employees voted to approve the taking of the various forms of industrial action.[14]
Subsequently, RMIT Training requested its employees to vote to approve a proposed enterprise agreement, which was not supported by the NTEU. A majority of RMIT Training employees, who cast a valid vote, voted to approve the proposed agreement and so the RMIT Training Pty Ltd and National Tertiary Education Union Enterprise Agreement 2023 (RMIT Training Agreement) was made on 18 November 2023.[15] That agreement was approved by Deputy President Bell on 20 December 2023 and will commence operation on 3 February 2024.[16]
Bargaining between the NTEU and RMIT continued for RMIT employees, as did various previously notified work bans. On 10 November 2023, RMIT applied under s 240 of the Act for the Commission to deal with a bargaining dispute.[17] The application was allocated to Commissioner Connolly, who, on 17 November 2023, issued directions requiring inter alia, the NTEU to file and serve a summary of its bargaining position.[18] The NTEU complied by filing and serving a document[19] in which it relevantly set out that:
“3.NTEU has been informed by RMIT Training Pty Ltd that in a ballot which closed on 18 November 2023 a majority of RMIT Training employees voted in favour of an agreement proposed to them by management. The Agreement made through the ballot covers staff that are currently covered by the RMIT Training Pty Ltd and National Tertiary Education Industry Union Enterprise Agreement 2016. In these circumstances, the NTEU will not press its claim for its proposed agreement to include the relevant cohort of RMIT Training employees. However, the NTEU reserves its right to challenge the approval of the RMIT Training Agreement and to reagitate the proposition of including RMIT Training within the scope of the proposed RMIT Agreement if the newly made Agreement for RMIT Training is not approved by FWC.
4. To be clear, The NTEU will persist with seeking a single agreement to cover all staff currently covered by the following two agreements:
a. RMIT University Enterprise Agreement 2018 (which covers Professional and Academic staff); and
b. RMIT Vocational Education Enterprise Agreement 2019 (which covers Vocational Education Teachers).”
On 4 December 2023, lawyers acting for RMIT wrote to the NTEU advising the NTEU of RMIT’s view that, as the only action authorised by the protected action ballot was action taken in support of reaching an enterprise agreement with both RMIT and RMIT Training, it “is no longer possible for employees of either entity to take such action now that the RMIT Training Agreement has been made” and the enterprise agreement sought by the NTEU could “no longer be made”.[20] The NTEU responded on 5 December 2023, advising RMIT’s lawyers that it “will instruct its members to cease taking industrial action” while it considered the matters raised by RMIT.[21] On 13 December 2023, the NTEU again wrote to RMIT’s lawyers advising that, while it accepted that RMIT Training employees could no longer take industrial action, it did not otherwise agree that RMIT employees were precluded from taking industrial action.[22] On the same day, the NTEU gave RMIT written notice of the industrial action in the following terms:
“Notice is given that officers, employees and members of the NTEU intend to organise and engage in industrial action in accordance with Part 3-3 of the Fair Work Act 2009 (Cth).
I hereby inform you that the nature of the industrial action, to be taken by members of the NTEU employed by RMIT University in the class of eligible employees described in the protected action ballot order handed down on 24 July 2023, is:
1.A stoppage of work of between five minutes and 24 hours by Dr Tricia McLaughlin, commencing at 10am on Wednesday 20 December 2023 and ceasing at 2pm on Wednesday 20 December 2023.”[23]
In that correspondence, the NTEU also advised RMIT that it had “provided additional notice in respect of the planned protected industrial action” to enable RMIT, if it maintained the position outlined in its lawyer’s letter, “to file a s 418 application at the earliest opportunity so that the matter may be conclusively determined”.[24] RMIT applied on 14 December 2023, for orders under s 418 of the Act that the industrial action stop, contending that the action was unprotected. Commissioner Connolly made an interim order under s 420(2) on 15 December 2023.[25]
By decision issued on 19 December 2023, Commissioner Connolly dismissed RMIT’s application, concluding that he was satisfied the industrial action the subject of the notice was protected action.[26] On the same day, RMIT lodged a notice of appeal applying for permission to appeal against the decision, and by its five appeal grounds therein, contended in substance jurisdictional error on the part of the Commissioner by failing to exercise jurisdiction because the industrial action about which it complained was not protected action and the Commissioner was therefore compelled to order the industrial action stop or not occur. RMIT sought an expedited appeal hearing because the industrial action to which the appeal related would occur on 20 December 2023, commencing at 10:00 am and concluding at 2:00pm.[27]
Also on that day, but after RMIT had lodged its notice of appeal, the NTEU gave notice to RMIT, withdrawing the industrial action earlier notified in the following terms:
“I hereby inform you that the below notified protected industrial action notified to you on 13 December 2023 is withdrawn, effective immediately.
1. A stoppage of work of between five minutes and 24 hours by Dr Tricia McLaughlin, commencing at 10am on Wednesday 20 December 2023 and ceasing at 2pm on Wednesday 20 December 2023.”[28]
During an ensuing email exchange:
the NTEU asserted that since the industrial action had been withdrawn, it was “no longer threatened, impending, or probable” and the need for an urgent hearing of the appeal had dissipated;[29]
RMIT sought an undertaking from the NTEU that “it will not notify further industrial action until such time as the appeal is determined”;[30] and
the NTEU did not agree to give such an undertaking.[31]
Permission to appeal must be granted if the Commission is satisfied that it is in the public interest to do so. Some of the circumstances in which the public interest may be enlivened in connection with an appeal were discussed in GlaxoSmithKline Australia Pty Ltd v Makin.[32] These are well known, and we need not repeat them here. Permission to appeal may also be granted on discretionary grounds. RMIT contends that it is in the public interest for permission to appeal to be granted because:
the errors for which it contends go to the jurisdiction of the Commission;
the appeal raises issues of importance and general application - whether a union which has obtained a protected action ballot order to authorise industrial action in support of claims for a single enterprise agreement to cover two employers, and which no longer presses a claim for that agreement, can rely on the outcome of a ballot undertaken pursuant to the order as authorising industrial action for a different enterprise agreement with only one of the employers;
the Commissioner’s decision that the industrial action notified was protected action is counterintuitive; and
although the decision relates to only one incident of industrial action on 20 December 2023, it is clear on the face of the correspondence from the NTEU dated 13 December 2023 that if a s 418 order is refused the NTEU intends to rely on the outcome of the ballot as authorising future industrial action in support of its current claim for an enterprise agreement with RMIT only. RMIT will be exposed to future unprotected action, and this will manifest an injustice.
RMIT also contends that despite the withdrawal of the industrial action shortly after the notice of appeal was lodged it is still in the public interest for permission to appeal to be granted because:
“the appeal will have ongoing relevance to the parties” for the reasons stated in the last bullet point in the preceding paragraph;[33] and
the appeal raises for determination “the proper construction and application of s 409(2) of the Act and the other matters in contest in the appeal”.[34]
For the reasons we set out below, we do not consider the appeal has any utility and so it is not in the public interest to do so. Although the issue raised on appeal is of some academic interest, the absence of any utility also persuades us not to grant permission to appeal on discretionary grounds.
The notified industrial action the subject of the proceeding below and in this appeal was a stoppage of work by Dr Tricia McLaughlin from 10:00 am to 2:00 pm on Wednesday 20 December 2023. It was not taken, and the notice of that action was withdrawn before the action was taken. There is no evidence that any further industrial action is threatened, impending, or probable by any employee of RMIT, and so, even if the Commissioner was wrong in his conclusion that the industrial action was protected action, no order can now issue. This is an appeal, ultimately, against a decision the effect of which was not to issue an order that industrial action complained of stop or not occur. Accordingly, there is no immediate or direct utility in the appeal because the ultimate result will be the same – no order can be made and RMIT’s application for an order under s 418 of the Act will be dismissed.[35]
We accept that the absence of any immediate or direct utility does not mean an appeal is completely inutile. Some utility may lay in resolving a question about future industrial action organised by the NTEU and taken by employees relying on the outcome of the 7 August 2023 protected action ballot. Although determining such a question in RMIT’s favour would not lead to an order being made because any industrial action is merely possible and there is no threatened, impending or probable industrial action by any RMIT employee, it might resolve questions about whether industrial action taken in furtherance of claims for an agreement with RMIT covering its employees would be protected and may assist in resolving any future s 418 application in relation to such action. RMIT presses the utility of its appeal on this basis. It points to the fact that the NTEU:
disagrees with RMIT’s interpretation that industrial action in furtherance of a single agreement with only RMIT is not authorised by the 7 August 2023 protected action ballot;[36]
refused to give an undertaking as to future industrial action until the appeal is resolved;[37]
declined to apply for a protected action ballot order, seeking authorisation of industrial action in support of its current claim for an enterprise agreement with only RMIT;
dropped its claim for an enterprise agreement covering RMIT and RMIT Training and its current claim in bargaining is for an agreement covering only RMIT employees; and
expressed a desire that the s 418 application be determined at the earliest opportunity so that the matter may be conclusively determined,
as evincing a likelihood that further industrial action will be organised, threatened or taken in support of the NTEU’s claim for an agreement covering only RMIT employees, relying on the 7 August 2023 protected action ballot.
That the NTEU disagrees with RMIT’s assertion that further industrial action in support of an agreement confined to RMIT is not authorised and that it wanted the s 418 application conclusively determined at the earliest opportunity, does not without more, suggest that further industrial action will be organised, threatened or taken in support of the NTEU’s claim for an agreement covering only RMIT employees. Nor does it breathe utility into the appeal. The failure by the NTEU to give an undertaking pending the determination of the appeal does not evidence that further industrial action is threatened, impending or probable. RMIT’s request of an undertaking was made in response to the NTEU’s assertion that since the notice of industrial action had been withdrawn, expedition of the appeal hearing was no longer necessary. The undertaking was not sought to gainsay that any further industrial action in support of an agreement covering only RMIT employees would not be threatened, impending or probable, or even that such action was not in contemplation.
Moreover, that the NTEU declined to apply for a protected action ballot order to seek authorisation of industrial action in support of its current claim for an enterprise agreement with only RMIT and that it has, to date dropped its claim for an enterprise agreement covering RMIT and RMIT Training, says little about its intention to only pursue a strategy of industrial action in support of an agreement confined to coverage of RMIT employees. That is one possibility but there are others.
We are not persuaded that determining the question raised by the appeal is likely to resolve the status of any future industrial action taken by RMIT employees. Apart from the matters just discussed, this is because the NTEU is not prevented from changing its current position on scope by reverting to seeking an enterprise agreement covering employees of both RMIT and RMIT Training. There is nothing in the statutory scheme of bargaining and agreement-making established by the Act preventing the NTEU continuing to pursue an enterprise agreement that covers both RMIT and RMIT Training.
Contrary to the assertion made by RMIT’s lawyers in its correspondence to the NTEU dated 4 December 2023,[38] an enterprise agreement initially sought by the NTEU covering both employers can still be made. That which is prohibited is the organising or taking of industrial action by, relevantly the NTEU and any employee of RMIT Training covered by the RMIT Training Agreement.[39] And the effect of making such an agreement is that it will not apply to any RMIT Training employee covered by it while the RMIT Training Agreement applies to that employee and has not passed its nominal expiry date.[40]
Such a changed course in the NTEU’s claimed scope might be regarded as nothing more than technical manoeuvring designed to overcome the possibility that action directed to an agreement covering only RMIT is not authorised by the 7 August 2023 protected action ballot. Be that as it may, this is not the occasion to decide that question or the consequences that might follow. It is sufficient to note that it is uncontroversially the case that the 7 August 2023 protected action ballot authorised the kinds of industrial action enumerated in the ballot question for the purpose of supporting and advancing claims for an enterprise agreement with RMIT and RMIT Training. For the reasons explained, bargaining for and making such an agreement is not prohibited by the Act merely because the in term RMIT Training Agreement applies to RMIT Training and its employees covered by that agreement. There is no reason to think that the NTEU would not again alter its claim should the appeal succeed. Thus, the question of the protected status of any future industrial action would not be resolved by this appeal. Any question whether industrial action taken by RMIT employees for the purpose of supporting and advancing claims for an enterprise agreement with RMIT and RMIT Training relying on the 7 August 2023 protected action ballot would be protected action in light of the making and approval of the RMIT Training Agreement is not raised by this appeal.
The appeal has neither direct nor any indirect utility. We are therefore not persuaded that permission to appeal is in the public interest, and we will not grant permission on discretionary grounds for the reasons stated.
Order
Permission to appeal is refused.
DEPUTY PRESIDENT
Appearances:
B Avallone and S Cheligoy of counsel for the Royal Melbourne Institute of Technology
L Saunders of counsel for the National Tertiary Education Industry Union & Patricia McLaughlin
Hearing details:
2024
Melbourne
15 January.
[1] Royal Melbourne Institute of Technology Act 2010, s 4.
[2] Respondent’s Outline of Submissions, 5 January 2024 at [5].
[3] Ibid.
[4] Ibid at [6].
[5] Ibid at [7].
[6] See National Tertiary Education Industry Union v Royal Melbourne Institute of Technology T/A RMIT University, RMIT Training Pty Ltd T/A RMIT Training[2023] FWC 1729 and the Order at PR764281.
[7] See the Order at PR764281.
[8] Appeal Book (AB)13, PR764281 at [5].
[9] AB21.
[10] AB27.
[11] AB21.
[12] AB172 at [24].
[13] AB21.
[14] AB23-AB25.
[15] Respondent’s Outline of Submissions, 5 January 2024 at [11].
[16] Re RMIT Training Pty Ltd[2023] FWCA 4376.
[17] Exhibit 2 at [3].
[18] Ibid at [5].
[19] Ibid, annexure NA-1.
[20] AB141 at [11]-[12].
[21] AB143.
[22] AB144.
[23] AB146.
[24] AB145.
[25] AB174, PR769522.
[26] Royal Melbourne Institute of Technology T/A RMIT University v National Tertiary Education Industry Union, Ms Patricia McLaughlin [2023] FWC 3406 at [91]-[93].
[27] AB202.
[28] Exhibit 1 at [5], attachment BS-2.
[29] Exhibit 1 at [6], attachment BS-1.
[30] Ibid.
[31] Ibid.
[32] (2010) 197 IR 266; [2010] FWAFB 5343 at [26]-[27].
[33] Applicant’s Outline of Submissions, 19 December 2023 at [24].
[34] Ibid.
[35] See Transcript (15 January 2024) PN269-PN279.
[36] AB266, AB163, AB220-AB221.
[37] Exhibit 1, Attachment BS-1.
[38] AB141 at [12].
[39] Fair Work Act 2009, s 417.
[40] Ibid, s 58.
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