University of Tasmania v National Tertiary Education Industry Union
[2017] FWC 5723
| [2017] FWC 5723 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.418—Industrial action
University of Tasmania
v
National Tertiary Education Industry Union
(C2017/5621)
| DEPUTY PRESIDENT BARCLAY | HOBART, 3 NOVEMBER 2017 |
Application to stop proposed industrial action – s 418 Fair Work Act – alleged unprotected action as not having commenced within 30 days of declaration of ballot – ban on preparation and delivery of teaching – held to be unprotected – stop order granted.
On 12 October 2017 the Applicant applied pursuant to s 418 of the Fair Work Act 2009 (the Act) for a stop order in respect to proposed industrial action to be taken by the Respondent on 13, 16 and 17 October 2017. The Applicant sought both interim and final orders stopping the industrial action.
Background
The matter was first listed at 4.00 p.m. on 12 October. At that hearing I determined to adjourn the Application to noon on 13 October 2017 for determination of the application for final orders. I was advised by the Respondent that the ability to take the industrial action was limited by the fact that the following week (commencing 16 October) was the last teaching week of the year. Accordingly the matter was listed the following day for full hearing.
I made an interim order stopping the industrial action until determination of the application. I did so notwithstanding that s 420 of the Act did not apply (as the application would be determined within 2 days) because I was satisfied that the Applicant had a reasonably arguable case that the proposed industrial action was unprotected and that dealing with the matter the following day meant that any prejudice to the Respondent in making the order was limited noting that if the application was dismissed the Respondent would be able to take industrial action on 2 of the proposed 3 days of action.
At the hearing on 13 October 2017 I made final orders stopping the proposed industrial action. I indicated I would publish reasons at a later date. These are those reasons.
The submissions
The Applicant submitted that the proposed industrial action had not been commenced within 30 days of the declaration of the results of the protected action ballot as required by s 459 (1) (d) (i) if the Act. As the ballot results were declared on 31 August 2017 the 30 days to commence industrial action expired on 30 September 2017. The Respondent made no submissions contrary to the proposition that the 30 days expired on 30 September. The Applicant submitted that the type of action contemplated by the Notices of Industrial Action had not been commenced within 30 days and therefore was unprotected.
The Respondent submitted that the type of action contemplated by the Notices had been commence within 30 days by action which was taken in consequence of the giving of a Notice of Industrial Action dated 13 September 2017. As the type of industrial action contemplated by the new notices was of the same type as the September notice the action had been commenced within 30 days.
The facts
In order to understand those submission it is necessary to consider the relevant ballot question, the September 2017 Notice of Industrial Action (the September Notice) and the Notices of Industrial Action dated 9, 10 and 11 October 2017 (the New Notices).
The relevant ballot question which was relevant to the proposed industrial action contemplated by the New Notices was question 7 which said:
“Bands or partial bans on any work related to the preparation or delivery of teaching including lecture recording or attendance taking”
The September Notice advised of industrial action as follows:
“1. During work hours, bans or partial bans on student attendance taking by ELC Teachers, commencing on Tuesday 19 September 2017.
2. During work hours, bans or partial bans on recording and/or transmitting assessment results to the employer by ELC Teachers, commencing on Tuesday 19 September 2017”.[1]
The new Notices related to industrial bans described as a:
“24 hour ban on any work related to the preparation and delivery to teaching on Friday 13 October 2017”.
All the New Notices were for present purposes to the same effect in their description of the industrial action to be taken but related to different days as referred to in paragraph 1 above.
Consideration
In reliance on James Cook University v. National Tertiary Education Industry Union[2] the Applicants submission was to the effect that where the protected action ballot approved a number of different types of industrial action, each type of industrial action must be commenced within the 30 days. It submitted a total ban as contemplated by the New Notices had not been commenced within the 30 day period because the September Notice was for a partial ban of a much more limited type of action..
Properly construed, the Applicant argued that question 7 of the Ballot authorised 2 types of industrial action: firstly a partial ban on the preparation or delivery of teaching including lecture recording and attendance taking and secondly a ban (in the sense of a total ban) on the same activity. Because the September Notice referred only to student attendance taking that was a partial ban. Since the New Notices banned all work relating to teaching (albeit including taking attendance) that amounted to a (total) ban on all work which was not contemplated by the September Notice. As such, a ban, as distinct to a partial ban had not been commenced within 30 days of the declaration of the ballot and was therefore unprotected.
The Respondent argued however that the September Notice effected a ban (in the sense of a total ban) on the taking of attendance and that as there was a ban on the taking of attendance the ban on the “preparation and delivery of teaching” in the New Notices was of the same type of industrial action as the September Notices. The Respondent argued that for there to be a partial ban on the taking of attendance, some attendances might be taken in some lectures but not in others. As there were no attendances taken there was a total ban as contemplated by the New Notices.[3]
I note in passing that the New Notices did not accurately reflect the Ballot question. The ballot authorised a ban on the “preparation or delivery of teaching”. The New Notice must be taken as meaning a ban on both preparation of teaching and delivery of teaching.
What type of industrial activity was the September Notice directed to? The September Notice was not happily phrased. It referred to both bans and partial bans and did not specify which. It might be thought that the notice may have been defective in that regard. However I was told no issue was taken as the Applicant understood what the action was. The September Notice banned the taking of attendance.
I concluded that this was a partial ban on the preparation or delivery of teaching. I determined that the reference to lecture recording and attendance taking was essentially a particular of preparation or delivery of teaching as those activities do not immediately spring to mind as part of the preparation or delivery of teaching. Such a conclusion is fortified by the use of the word “including” meaning the preparation or delivery of teaching were the activities to which the question related, but that those activities were extended to include recording and attendance taking.
The New Notices go a whole lot further. They ban all activities related to the preparation or delivery of teaching. That is the notices ban preparation for teaching which presumably does not all occur in the class room. They ban all activities of teaching in the class room. The September Notices in reality were a partial ban as they banned only one particular aspect of either preparation for teaching (if it is thought that the taking of attendance is a preparatory matter) or one aspect of delivery of teaching (if it is thought that attendance taking forms part of the duties of the presentation of teaching in classrooms).
It is to be noted that taking attendance is only one small part of teaching. Preparing for teaching will involve research, preparation of lecture or tutorial notes, preparation of reading lists and the like. Delivery of teaching contemplates what goes on in the class room. That is presenting the lecture or tutorial. Clearly taking attendance is but a small part of the whole. Properly understood, a ban on taking attendance is a partial ban.
Accordingly I determined that the New Notices related to a different type of industrial action than the action taking in consequence of the service of the September Notices.
In James Cook University Commissioner Bissett reviewed the relevant authorities regarding this issue. She was dealing with the following question:
Do you approve the use of stoppages of work, being ten (10) minute stoppages and/or one-hour stoppages and/or 24-hour stoppages?
At [33] Commissioner Bissett held:
I am satisfied that Question 1 in the protected action ballot can be characterised as a range of options for stoppages that may or may not be taken. That each option was separated by the words “and/or” does not change this characterisation. The form of Question 1 falls squarely within the type of circumstance described in Health Imaging Services v HSU set out above and upheld on appeal. To this extent the authorisation of one of the options for a stoppage of work in question 1 does not authorise all of the options contained in that question. To conclude otherwise would allow an unlimited number of options to be put in a single ballot question and only require one of those option to be taken within the 30 day period for all options to remain “live”. This is a non-sensical outcome and would be contrary to Full Bench authority on the question.
The reference to the decision in Health Imaging Services v, HSU and the decision on appeal was as follows (omitting footnotes):
[30] JCU relies on the decision in Health Imaging Services Pty Ltd v Health Services Union. In that matter Senior Deputy President Drake was considering matters associated with a single question asked in a protected action ballot that had a range of alternative actions listed. Only one of the range of alternative actions had been taken within the 30 day period. When the workers imposed further bans contained in the one question outside the 30 day period the employer sought, and was granted, an order that the action cease as it was not protected industrial action. In reaching her decision the Senior Deputy President observed:
...I do not believe that the form of the question altered the fact that the list of possible industrial actions contained in the single question were listed as alternatives from which, in the thirty days following the declaration of the ballot, the HSU members were to select their industrial action and implement it. Combining the possibilities of industrial action in one question as a list did not alter that situation. The plain English meaning is that the possible industrial actions were alternatives. Each “dot” point described a type of industrial action which could have been commenced during the thirty day period beginning on the date of the declaration of the results of the ballot and, if so commenced, could have continued throughout the bargaining period.
[31] In dismissing an appeal from that decision the Full Bench of the Commission said:
We have concluded that on the proper construction of s 478(1) where a protected action ballot endorses a number of types of industrial action, a type of action which does not commence within the 30 day period provided for is not authorised by the ballot. Accordingly, if action of that type is subsequently taken, because of the operation of s 445 of the Act it will not be protected action. This conclusion is consistent with the reasoning of Gyles J in United Collieries Pty Ltd v Construction, Forestry, Mining and Energy Union to which we were referred. [Footnote omitted]
In light of these authorities I determined that as the type of industrial action contemplated by the New Notices was of a different type (a partial ban as opposed to a total ban) than that referred to (and taken) in the September Notice, that the industrial action contemplated by the New Notices was not going to be taken within 30 days of the declaration of the ballot. Accordingly, subject to s 418 (1) I found the industrial action would be unprotected.
In respect to the requirement in s 418 (1) I was required to be satisfied that unprotected industrial action:
(a) is happening; or (b) is threatened, impending or probable; or (c) is being organised.
In light of the service of the New Notices I was satisfied that the action was threatened, impending, probable and being organised. Accordingly I made a final order stopping the action contemplated by the New Notices.
I should note that during the hearing the Respondent made reference to some materials which had apparently been provided to the Commission but had not made their way to either me or the Applicants representative. The Respondent did not refer to any of that material (save one decision).
I have reviewed the material. In particular I note that a number of other Notices of Industrial Action were served on the Applicant. I note that the previous notices related to action contemplated by other questions in the ballot. None of those previous notices relied on question 7 as the basis for taking industrial action. The only notices which rely on question 7 are referred to above. Accordingly the service of those other notices does not assist the Respondent as the industrial action is clearly of a different type to that contemplated by the New Notices.
DEPUTY PRESIDENT
Appearances:
R Collinson and S Masters for University of Tasmania
W Cupido and C Smith for National Tertiary Education Industry Union
Hearing details:
2017
Hobart
12 October
2017
Hobart
13 October
[1] I note that the second form of industrial action was not relevant to the issues in dispute between the parties and need not be considered.
[2] [2017] FWC 4976
[3] I note that the Respondent did not adduce any evidence at the hearing of the application. However for the purposes of the submissions I accepted what was put to me as being true.
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