[2022] FWC 2514 [Note: This decision has been quashed – refer to Full Bench decision dated 25 October 2022 [2022] FWCFB 193]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Tertiary Education Industry Union
v
Curtin University
(B2022/1394)

DEPUTY PRESIDENT BINET

PERTH, 20 SEPTEMBER 2022

Proposed protected action ballot of employees of Curtain University

[1] The National Tertiary Education Industry Union (NTEU) have applied to the Fair Work Commission (FWC) for a protected action ballot order (Application) pursuant to section 437 of the Fair Work Act 2009 (Cth) (FW Act) in relation to the bargaining for an agreement to replace the Curtin University Academic, Professional and General Staff Agreement 2017-2021 (Proposed Agreement).

[2] The Application was supported by a statutory declaration from Mr Wayne Patrick Cupido, National Industrial Officer of the NTEU (Mr Cupido). 1

[3] The NTEU seek an order for a ballot to be conducted of employees of Curtin University (Curtin) who are employed by Curtin in classifications covered by the proposed agreement and who are represented by the NTEU, or who are bargaining representatives for themselves but are members of the NTEU (Employees).

[4] The Application was listed for a Conference on 19 September 2022. The parties explored whether a consent position was able to be reached however the NTEU decided they wished to press their Application without amendment and a Hearing was held at 7pm (AWST) 19 September 2022 (Hearing).

[5] Directions for the filing of materials in advance of the Hearing were issued to the parties on 16 September 2022 (Directions).

Permission to be Represented

[6] The Directions invited the parties to make submissions as to whether the FWC should grant permission to the parties to be represented. A determination of this issue is necessary to ensure that the manner in which any hearing is conducted is fair and just.²

[7] Curtin sought permission to be represented at the Conference and the Hearing.

[8] Having considered the submissions of the parties, leave was granted to Curtin to be represented at the Hearing (but not the Conference), pursuant to section 596(2)(a) of the FW Act, on the grounds that it would enable the matter to be dealt with more efficiently taking into account the complexity of the matter.

[9] The NTEU were represented by Ms Jeane Wells (Ms Wells) Industrial Officer of the NTEU at the Hearing. Curtin were represented by Mr Simon Rogers of Mills Oakley (Mr Rogers) pursuant to section 596 of the FW Act.

Evidence

[10] The Directions required the parties to file their witness evidence in chief in advance of the Hearing.

[11] The NTEU filed a witness statement setting out the evidence in chief of the following witnesses:

a. Ms Sian Catrin Mary Flynne (Ms Flynne); 3

b. Associate Professor Scott Warrant Fitzgerald (Associate Professor Fitzgerald); 4

c. Dr Francis Russell (Dr Russell); 5 and

d. Mr Stephen Donaldson – Director - Truevote Pty Ltd (Mr Donaldson). 6

[12] Ms Flynn is employed as a Business Manager in the School of Accounting, Economics and Finance. She is Curtin Branch Vice President (General Staff), National Councilor of the NTEU and a member of the NTEU bargaining team. A two page witness statement was filed on her behalf but she indicated under oath that the witness statement she signed contained more information than what was filed by the NTEU. Associate Professor Fitzgerald whose witness statement was unsigned is employed in the Faculty of Business and Law, School of Management and Marketing. He is Branch President of the Curtin Branch of the NTEU and a member of the NTEU bargaining team. Dr Russell is a lecturer in the Faculty of Humanities. He is a committee member of the NTEU and a member of the NTEU bargaining team. Mr Donaldson is a Director of the ballot agent which the NTEU propose conduct the ballot.

[13] At the Hearing the NTEU witnesses, other than Mr Donaldson who was not required for cross examination, were cross examined by Mr Rogers.

[14] Curtin filed a witness statement setting out the evidence in chief of its witness Ms Michelle Paul Davie (Ms Davie). 7 Ms Davie is employed at Curtin as General Manager for the Faculty of Humanities and is Curtin’s Project Lead for the enterprise bargaining for the Proposed Agreement.

[15] The NTEU elected not to cross examine Ms Davie.

[16] The parties jointly prepared and filed a digital court book containing the evidence and submissions of the parties prior to the Hearing date (DCB). The DCB was admitted at the Hearing as an exhibit and marked Exhibit DCB1.

[17] In reaching my decision, I have considered all the submissions made and the evidence tendered by the parties, even if not expressly referred to in these reasons for decision.

Background

[18] Curtin is an Australian university with campuses in Australia and overseas.

[19] Curtin issued a Notice of Representational Rights to commence bargaining for the proposed agreement on 1 July 2021. 8

[20] The NTEU seeks an agreement that will cover both professional and academic staff up to the Vice Chancellor and all employees of related entities. 9

[21] Since bargaining commenced the parties have held nine bargaining meetings. 10

[22] Both the NTEU and Curtin agree that the parties are genuinely trying to reach agreement. 11

Consideration

[23] The FWC is obliged to issue a protected ballot order in the following circumstances:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[24] Section 437 relevantly provides as follows:

“437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) If A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.”

[25] It is not in dispute that the NTEU has standing to make the Application in their capacity as a bargaining representative. 12

[26] The Proposed Agreement is not a greenfields agreement or a multi-enterprise agreement. 13

[27] The notification time in relation to the Proposed Agreement is 1 July 2021. 14

[28] The Application specifies the group of employees who are to be balloted. 15

[29] The Application was accompanied by documents and other information prescribed by the Fair Work Regulations 2009 (Cth) (Regulations).

[30] The NTEU seek the appointment of Truevote Pty Ltd as the protected action ballot agent. 16

[31] The FWC may only make the order sought if the FWC is satisfied that NTEU has been, and is, genuinely trying to reach an agreement with Curtin. The NTEU bears the onus of establishing this. 17

[32] The reference to the FWC being “satisfied” means that determining whether or not the requisite circumstance exists is a discretionary decision. The expression “has been, and is” imports temporal considerations, both of which are to be considered. An applicant for a protected action ballot order must satisfy both.

[33] In Esso Australia Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia; The Australian Workers' Union 18 (Esso Case), the Full Bench stated:

“Whether an applicant ‘has been, and is, genuinely trying to reach an agreement’ is a question of fact to be decided having regard to all of the facts and circumstances of the particular case. Such a construction of s.443(1)(b) is consistent with the judgment of the Full Court in JJ Richards and with a number of Full Bench decisions of the Commission (see Total Marine; Pelican Point Power Limited v ASU; JJ Richards No.1; Alcoa; JJ Richards No.2; and Farstad” 19 (references omitted)

[34] In Total Marine Services Pty Ltd v Maritime Union of Australia, 20 a Full Bench of Fair Work Australia relevantly stated:

“[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.

[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement...”

[35] Both decisions stand for the proposition that a decision rule should not be adopted for the purposes of determining whether an applicant for a protected action ballot order has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The entirety of the circumstances of the case must be taken into account.

[36] At the NTEU provided evidence of the steps taken by them to bargain and of the progress of bargaining to date. 21

[37] It is not in dispute and I am satisfied that the NTEU have been, and is, genuinely trying to reach an agreement with Curtin.

[38] Pursuant to section 414 of the FW Act, where an employee is to engage in protected industrial action, their bargaining representative must give written notice of the action. Section 414(2) requires three working days’ notice, or any longer period specified in the protected action ballot order. Neither party proposes that a longer period be specified in the protected action ballot order.

[39] Curtin oppose the Application on the grounds that the FWC can not be satisfied that:

a. The requirements of section 444 have been met.

b. The questions proposed to be put to the Employees do not satisfy the requirements of sub section 437(3)(b)

c. The information to be provided to the proposed ballot agent goes beyond that which is reasonably necessary. 22

Ballot Agent

[40] If an applicant wishes a person other than the Australian Electoral Commission (AEC) to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

[41] In the Application the NTEU seek the appointment of Truevote Pty Ltd as the protected action ballot agent. 23

[42] Section 444 of the FW Act relevantly provides that:

“s.444 FWC may decide on ballot agent other than the Australian Electoral Commission and independent advisor

Alternative ballot agent

(1) The FWC may decide that a person other than the Australian Electoral Commission is to be the protected action ballot agent for a protected action ballot only if:

(a) the person is specified in the application for the protected action ballot order as the person the applicant wishes to be the protected action ballot agent; and

(b) the FWC is satisfied that:

(i) the person is a fit and proper person to conduct the ballot; and

(ii) any other requirements prescribed by the regulations are met.

(2) The regulations may prescribe:

(a) conditions that a person must meet in order to satisfy the FWC that the person is a fit and proper person to conduct a protected action ballot; and

(b) factors that the FWC must take into account in determining whether a person is a fit and proper person to conduct a protected action ballot.”

[43] Regulation 3.11 provides that:

“3.11 FWC may decide on ballot agent other than the Australian Electoral Commission--requirements for protected action ballot agent

(1) For subparagraph 444(1)(b)(ii) of the Act, this regulation sets out requirements that the FWC must be satisfied have been met before a person other than the Australian Electoral Commission becomes the protected action ballot agent for a protected action ballot.

Note: The person must also be a fit and proper person to conduct the ballot.

(2) The person must be capable of ensuring the secrecy and security of votes cast in the ballot.

(3) The person must be capable of ensuring that the ballot will be fair and democratic.

(4) The person must be capable of conducting the ballot expeditiously.

(5) The person must have agreed to be a protected action ballot agent.

(6) The person must be bound to comply with the Privacy Act 1988 in respect to the handling of information relating to the protected action ballot.

(7) If the person is an industrial association or a body corporate, the FWC must be satisfied that:

(a) each individual who will carry out the functions of the protected action ballot agent for the industrial association or body corporate is a fit and proper person to conduct the ballot; and

(b) the requirements in subregulations (2) to (6) are met for the individual.”

[44] The NTEU bears the onus of establishing that the statutory requirements for the appointment of Truevote have been met.

[45] The Application was accompanied by a statutory declaration by Mr Donaldson stating as follows: 24

“As a representative of Truevote Pty Ltd ABN 321 550 72980

I can conduct a ballot in accordance with the ORDER is accordance with sections 449-458 of the Fair Work Act.

• I am a fit and proper person to conduct a ballot.

• I will follow procedures prescribed by the Fair Work Regulations.

• I am aware of my obligations to the Fair Work Commission.

• I am bound by and will comply with the Privacy Act 1988.

• That the ballot shall be secret and secure.”

• And that we agreed to be a protect action ballot agent.”

[46] The NTEU also filed a witness statement by Mr Donaldson in accordance with the Directions. The witness statement provided the following information about Mr Donaldson:

“Stephen Donaldson B.t, Dip.Q, Certified Computer Systems Engineer.

I was a public servant in the State of South Australia for more than 20 years I occupied various rolls during this time:

• Principal lecturer at TAFESA in the department of IT Studies specializing in Cyber Network Security and IT Business Risk management.

• I was manager of the department.

• I was on the board of a number of Institute committees including finance, culture and planning.

• I have been police cleared as part of my education requirements.

• I tutor for the Australian Computer Society with.International students who are completing their master degree at University in preparation for entering the Australian workforce.

• I have never been disqualified from holding a director's position.

• I have no criminal record.

• I created the company TrueVote Pty.”

[47] The witness statements also states that Mr Donaldson has previously conducted protected action ballots under orders of the FWC.

[48] The witness statement also relevantly provides the following information about Truevote:

“Our people include an experienced returning officer, a qualified security network professional and a skilled auditor.

…

All ballot and voter information is controlled and secured in accordance with industry best practice. Our policies are developed in alignment with 1SO/IEC 27001:2013 Information Technology- Information Security Management.

…

TrueVote provides an independent voting solution and has no affiliation with any union or employer, all voting is confidential and secure.

TrueVote services operate out of Sydney in a secure hosting facility, all data is stored in Australia. TrueVote is bound by the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs). The TrueVote system operates on a needs based access and is strictly limited on who has access to data. TrueVote shall ensure the ballot will be fair and democratic and conducted expeditiously. Data to and from TrueVote is encrypted. TrueVote will not disclose how any individual has voted to the client.”

[49] There is insufficient evidence before me to satisfy me that all the statutory requirements have been met for TrueVote to be appointed as the ballot agent. For example, Mr Donaldson’s assertions with respect to his qualifications, work experience, criminal record and qualification to hold a position as a Director are unsupported by any evidence such as curriculum vitae, police check or references.

[50] The evidence suggests that TrueVote employs at least three individuals who carry out the functions of the protected action ballot for TrueVote including a returning officer, a qualified security network professional and an auditor. The declarations that Mr Donaldson has made are expressed in the first person and only the declaration of willingness to be the agent is expressed otherwise. There is insufficient evidence before me to satisfy me that each individual who will carry out the functions of the protected action ballot agent for TrueVote is a fit and proper person to conduct the ballot or that the requirements in sub regulations (2) to (6) of Regulation 3.11 are met for each individual.

[51] I note that Curtin were directed to file its materials before the NTEU filed theirs. Having put the NTEU on notice that it challenged TrueVote’s capacity to satisfy the statutory requirements to be appointed as the ballot agent the NTEU had the opportunity to produce evidence to ensure that any concerns about the suitability of the proposed ballot agent could be put to rest.

[52] Curtin submit that in circumstances where I am not satisfied that the requirements in section 444 have been satisfied that the Application must be dismissed pursuant to section 441(2) of the FW Act.

[53] Sub section 441(2) provides that:

“441 Application to be determined within 2 days after it is made

(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.”

[54] Section 440 of the FW Act provides that:

“440 Notice of application

Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:

(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or

(b) otherwise—the Australian Electoral Commission.”

[55] Section 440 does not require service of the AEC if the application specifies an alternative ballot agent. The Application in this case specified an alternative ballot agent. I am therefore satisfied that requirements of section 440 have been met even if the ballot agent proposed by the NTEU is not ultimately appointed.

[56] Section 441 deals with the timeframe in which an application must be heard and determined. I am not satisfied that a failure to comply with the section 440 is fatal to an application rather I am of the view the consequence of a failure to comply with section 440 intended by legislature was a delay in the determination of application.

[57] In the absence of the appointment of an alternative ballot agent the AEC is the default ballot agent.

Questions Posed

[58] The Application lists the questions to be put to the employees who are to be balloted. 25 Those questions are:

“In support of reaching an Enterprise Agreement with Curtin University, do you authorise industrial action against your employer, separately, partially, concurrently and/or consecutively, in the form of:

“1. Stoppages of the performance of work of between 5 minutes and 24 hours in duration?

2. Indefinite stoppages of work?

3. A ban on preparation for Curtin University events?

4. A ban on participation in Curtin University events?

5. Making statements explaining why the union is taking industrial action?

6. A ban on attending any physical campus of Curtin University?

7. A ban on responding to phone calls or emails?

8. A ban on working outside your usual hours of work?

9. A ban on the use of Curtin University’s online systems?

10. A ban on attending meetings with supervisors/ managers/ Heads of School/ PVCs/ Senior Executives?”

[59] Subsection (3)(b) of section 437 requires that the Application specify the question or questions to be put to the Employees including the nature of the proposed industrial action.

[60] Curtin submit that questions three to ten do not adequately specify the nature of the proposed industrial action.

[61] Section 437 requires that the questions describe the industrial action in such a way that employees are capable of responding to them. 26 To be able to respond the Application should propose questions and contain other details of the industrial action and other relevant matters that will permit employees to make an informed choice whether to authorise the particular action specified in the question.27

[62] As explained by Deputy President Dean in Transport Workers’ Union of Australia v Prosegur Australia Pty Ltd: 28

“[20] While a high level of specificity is not required, the ballot questions cannot be so unspecific as to be vague and meaningless. The level of specificity required is one which enables employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. It requires employees to be able to understand the implications for them while at work. The balance to be struck is that employees must be able to understand what it is they are being asked to support in terms of the proposed industrial action and enable them to make an informed choice in that regard.”

[63] If the questions are ambiguous or lack clarity, industrial action taken pursuant to the protected action ballot may be found not be protected with adverse consequences for bargaining representatives and their members. A question which is ambiguous or does not permit employees to make an informed choice does not comply with the requirements for a valid protected ballot order application. 29

[64] It will not normally be the role of the FWC to interfere in the drafting of questions to appear in a protected action ballot order. 30

[65] However, as noted by the Full Bench of the FWC in [2021 FWCFB 1562 at [33]:

“… there may nonetheless be some cases in which the Commission will not be satisfied that the condition in s 443(3)(d) is met. In those cases where the employer seeks to be heard in relation to an application for a protected action ballot order, the employer may present evidence or other material which demonstrates that, because of the nature of the work that employees perform or some other relevant circumstance, a considered response might not be able to be given by employees to a particular question.”

[66] This is such a case as demonstrated in the cross examination of the witnesses of the NTEU, a small sample size of the large number of diverse Employees eligible to vote if the Order is granted.

[67] For example, the witnesses differed in their understanding of what a Curtin event was for the purposes of the protected action ballot. Some witnesses understood the ban to relate to events listed on the Curtin university website, others understood it to apply to any event ‘hosted’ by Curtin, whereas others believed it extended to events ‘endorsed’ by Curtin but not necessarily hosted by Curtin.

[68] The witnesses also differed as to their understanding of the ban on responding to phone calls or emails. Some understood the ban to be limited to physically picking up the phone or selecting the reply function on an email but understood the ban to permit responding to a message left on voicemail when the phone went unanswered or replying to an email in separate chain. While other witnesses understood that the ban prevented any response while the ban remained in place.

[69] The witnesses also significantly differed as to their understanding of the scope of the ban on using Curtin’s online systems. Some understood the ban to exclude proprietary software such as Microsoft products while others understood the ban to include all computer systems whether customised to Curtin or generic.

[70] A number of the witnesses gave evidence that they have no ‘usual hours of work’. It is unclear what industrial action Employees without usual hours of work would understand the question to be authorising.

[71] Question five both on its face, and in the course of cross examination, reveals significant ambiguity. Firstly, it is not the union who takes the industrial action. It is the Employees. The question does not identify what industrial action is proposed by the question. One witness understood the industrial action to be the making of a statement in support of the industrial action. Such statements might be made with no impact on work. Other witnesses explained that the making of such statements might impact on their work by slowing down productivity.

[72] Questions three to ten share a common, and in the circumstances of this Application, a fatal element of ambiguity … the use of the phrase “A ban on ..”.

[73] The use of the phrase “A ban on …” was considered by Deputy President Beaumont in Australian Workers Union v Jadestone Energy (Australia) Pty Ltd 31 and found to be ambiguous, denying employees the opportunity to make an informed choice about the type of protected action they were voting to take.

[74] As noted by the Deputy President at [57]:

“On any objective level, it is difficult to discern whether the questions refer to a singular ban of indefinite duration, a singular ban for a finite period, or a ban for a finite period followed by another ban for a finite period (that is a series of discrete bans for finite periods). In the context of this application, the questions are ambiguous and do not place the employees in a position to make an informed choice about the type of protected industrial action they are voting to take.”

[75] While preamble to the questions in this Application contemplates that each of the ten types of industrial action listed may occur, separately, partially, concurrently and/or consecutively it is not clear whether the phrase ‘A ban …” used in questions three to ten contemplates a singular ban of indefinite duration, a singular ban for a finite period, or a ban for a finite period followed by another ban for a finite period.

[76] In the context of this Application, I am of the view that questions three to ten are ambiguous and do not place the Employees in a position to make an informed choice about the type of protected industrial action they are voting to take. I have therefore excluded those questions from the Order.

[77] Having been satisfied that the requirements of s 443(1)(a) and (b) of the FW Act have been complied with, the Application is granted subject to the modifications noted in this Decisioin, and a protected action ballot order will be issued with this decision. 32

tle: Seal of the Fair Work Commission with DP Binet's Signature