University of South Australia v National Tertiary Education Industry Union
[2009] FWA 1304
•25 NOVEMBER 2009
[2009] FWA 1304 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
v
National Tertiary Education Industry Union
(C2009/11115)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 25 NOVEMBER 2009 |
University of South Australia for an order to stop industrial action by NTEU.
[1] On 23 November 2009 the University of South Australia (USA) lodged an application pursuant to section 418 of the Fair Work Act 2009 (the Act). In this application the USA sought an order that industrial action being taken by members of the National Tertiary Education Industry Union (NTEU) stop.
[2] The application was the subject of a hearing on 24 November 2009. The USA was represented by Mr Wedgwood of the Australian Higher Education Industrial Association and the NTEU by Mr Bandt, of counsel.
[3] The background to the application is as follows. A protected action ballot order was issued on 6 August 2009. The Australian Electoral Commission subsequently conducted a ballot. The result of that ballot was declared on 1 September 2009. On 23 September 2009 the NTEU gave the USA notice of industrial action. That part of the industrial action which gives rise to this application states:
“A ban on the recording and transmission to the University, of assessment and exam results from 9am on Tuesday 29 September 2009 by NTEU members in the School of Education, in the School of Nursing and Midwifery, in the International Graduate School of Business, in the Centre for Regional Engagement and in the School of Communication, International Studies, and Languages.”
[4] The position of the USA is that the 30 day period within which protected industrial action may be commenced expired on 30 September 2009. Further, that the notice of industrial action, which reflects one of the ballot questions put to employees, must be read specifically as a ban on the recording and the transmission, to the USA of assessment and examination results. As no examination results were processed over the period from 9:00am on 29 September 2009 to the expiry of the 30 day protected action period, the totality of the action did not commence within that 30 day period and is hence unprotected industrial action. In the alternative, the USA argue that, at best, the only action which commenced before the expiry of the 30 day period was a ban on the recording and the transmission of assessment results such that the current ban on the recording and transmission of exam results could not be described as protected industrial action and should be stopped. In this respect, the USA was particularly concerned that the current industrial action was adversely impacting on students, and, particularly, graduating students.
[5] In support of its position the USA referred to the differing specific questions put to NTEU members, employed by a range of other universities, and to a number of authorities.
[6] Mr Gladigau, the Manager, Workplace Relations in Human Resources at USA gave evidence about the extent to which USA had convened no examinations which were required to be recorded or transmitted over the period 29 to 30 September 2009. Further, Mr Gladigau had not been made aware of any complaints or issues relative to the withholding of examination or assessment results over that period. Finally, Mr Gladigau’s evidence went to his understanding that examinations were a separate form of assessment of students.
[7] The NTEU position was that the industrial action commenced on 29 September 2009 was consistent with the action approved by employees in the ballot. Further, that the type and the nature of the industrial action specified properly reflected the objectives set out in section 436 for a fair, simple and democratic process whereby employees elected to engage in industrial action. The action commenced on 29 September 2009 simply reflected the majority consensus expressed in the ballot. The NTEU submits that the industrial action with respect to the recording and transmitting of assessment and examination results was commenced within the 30 day period in the form of a ban on recording and transmitting of assessment results. The NTEU asserts that examinations are in this respect, a form of assessment.
[8] Finally, whilst I consider that little turns on the issue in the circumstances of this matter, the NTEU argued that the 30 day period should be calculated on the approach set out in the Acts Interpretation Act.
[9] Evidence in support of the NTEU position was given by Ms Chandler, a Senior Lecturer in the School of Education at USA and Mr Rouse, a Lecturer in the School of Nursing and Midwifery at the USA. Both witnesses advised that between 29 and 30 September 2009 they were in a position to record and transmit assignment results but did not do so as a result of the ban on this action.
Findings
[10] As a matter of convenience I have initially considered the appropriate method of counting the 30 day period specified in section 459(1). This subsection states:
“(1) Industrial action by employees is authorised by a protected action ballot if:
(a) the action was the subject of the ballot; and
(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and
(c) more than 50% of the valid votes were votes approving the action; and
(d) the action commences:
(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or
(ii) if FWA has extended that period under subsection (3)—during the extended period.
Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.”
[11] The specific approach detailed in this subsection requires that the 30 days starts on the day of the declaration of the results of the ballot and means that in this circumstance, the 30 day period concluded at midnight on 30 September 2009. The more general approach set out in the Acts Interpretation Act cannot be used to override the specific provision in subsection 459(1).
[12] In the course of the hearing relative to the protected action ballot the USA raised no issue with respect to the question underpinning the action in dispute. This question stated:
“Question 7
A ban on the recording and transmission to the University, of assessment and exam results.
Yes / No”
[13] There is nothing before me that establishes that this question, answered affirmatively by a majority of the NTEU members, was so lacking in specificity that it cannot be relied upon to underpin subsequent industrial action.
[14] I am satisfied that the refusal to record and/or transmit either or both assessment or examination results constitutes industrial action for the purposes of section 19 of the Act.
[15] Section 418 states:
“(1) If it appears to FWA 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;
FWA 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) FWA 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, FWA does not have to specify the particular industrial action.
(4) If FWA 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;
FWA 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.”
[16] The initial issue thus goes to whether the action by NTEU members, employees of USA, to refuse to record or transmit assessment or exam results is not, or would not be protected industrial action.
[17] I am unable to accept the degree of differentiation between assessments and exams, which is asserted by USA. It appears to me that an examination is a test of a student’s knowledge or skill and as such is a form of assessment.
[18] The evidence before me is that Ms Chandler and Mr Rouse had both commenced to act in accordance with the NTEU ban before the expiry of the 30 day period specified in section 459. Accordingly, I consider that a refusal to record or transmit either assessment or examination results amounts to a refusal to record or transmit conclusions relative to the knowledge or skill of students.
[19] In reaching this conclusion I have noted that the NTEU has recently sought and obtained protected action ballots for range of universities on the basis that various actions relative to assessment results have been put to member employees. I cannot conclude that this means that the question put to the USA member employees should be taken on the basis of anything other than its plain words.
[20] The industrial action at issue here has been set out in ordinary English such that its intent is clear. In United Colleries Pty Ltd v CFMEU 1 Gyles J addressed the employer proposition that each form of industrial action authorised in a ballot is self contained such that it could not be repeated after the 30 day protected industrial action period that was then specified in the Workplace Relations Act 1996. His Honour stated:
“21 I am not persuaded that the relevant provisions of the Act are as restrictive as is submitted on behalf of United Collieries. The issue really is whether each question passed at the ballot properly describes industrial action. If a question in the form of question 1 is answered in the affirmative, then industrial action of a particular nature is authorised with no time limits. The effect of the position of United Collieries is that there is an unspoken limitation that action would have to take place within the 30 day period. I disagree. The relevant period for industrial action, having in mind the scheme of the Part of the Act in question, is the bargaining period, not the 30 day period. The existence of the 30 day period does not affect the answer to the question as to whether industrial action has been properly authorised. The purpose of the time limit in question needs to be considered. It is a time limit for commencement of industrial action, not a time limit for completion of industrial action. The bargaining period provides that limit. In my opinion, the purpose of the provision is to ensure that the employees are voting upon a real proposal based upon relatively contemporaneous circumstances. A commitment to relatively prompt action is involved, rather than simply giving an authority which can be held up the sleeve of those negotiating for the employees.
22 The grammatical argument advanced by United Collieries is unconvincing. The phrase ‘the action’ refers back to ‘industrial action’. There is, of course, the need to specify the industrial action but there is no indication that that must be done by reference only to specific instances of it. A consequence of the argument for United Collieries is that a separate ballot would be required before each instance of, eg, a 24 hour stoppage, a ban on the working of non-rostered overtime or a shift stoppage. Bearing in mind the detailed and formal nature of conducting a ballot and the consequent time and cost, that would be an unlikely result.”
[21] The scheme of the Workplace Relations Act 1996 is distinctly different to that of the current Act in that section 478 of the Workplace Relations Act recognised that industrial action could, in certain circumstances, continue during a bargaining period. The current Act does not preserve the concept of a bargaining period but it retains the concept of continuing protected industrial action which commenced before the expiry of 30 days. In this respect the United Colleries decision remains apposite.
[22] I have concluded that the generic descriptions of the bans with respect to recording and transmitting of assessments and examination results is sufficient to encompass a limited range of specific protected industrial actions and that it is not necessary that each of these actions occurred before the expiry of the 30 day period. I consider that the ban extends to either or both, the recording, or the transmitting of, in effect, any form of student assessment.
[23] For these reasons I am satisfied that the actions currently being taken by NTEU members constitute protected industrial action. As a result, I am not satisfied that the prerequisite circumstances required under section 418 has been made out. The application must be refused on this basis.
SENIOR DEPUTY PRESIDENT
Appearances:
D Wedgwood on behalf of the University of South Australia.
A Bandt counsel for the National Tertiary Education Industry Union.
Hearing details:
1 (2006) FCA 904
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