[2013] FWCFB 9549



Fair Work Act 2009

s.604 - Appeal of decisions

National Tertiary Education Industry Union
RMIT University



Appeal against decision [[2013] FWC 8829] and Order PR544355 of Commissioner Wilson made on 11 November 2013 in matter number C2013/6705.

[1] On 8 November 2013, Commissioner Wilson issued an interim order 1 (Interim Order) and on 11 November 2013, a decision2 (Decision) and a final order3 (Final Order) in matter C2013/6705, an application pursuant to s.418 of the Fair Work Act 2009 (the Act) filed by RMIT University (RMIT). Commissioner Wilson found that the National Tertiary Education Industry Union (the NTEU) had undertaken unlawful industrial action, and ordered that the action stop. In anticipation of the hearing of this appeal, the NTEU sought a stay of the Interim Order, the Final Order and the Decision and that application was refused by Vice President Catanzariti on 12 November 2013, with reasons for that decision issued on 13 November 2013.4

[2] Given the particular facts of this appeal and the potential effect of the outcome on both parties, this appeal was heard expeditiously on 21 November 2013. Mr H Borenstein of Senior Counsel sought permission to appear for the NTEU and Mr M McDonald of Senior Counsel and Mr J Tracey of Counsel sought permission to appear for RMIT. Given the complexity of the appeal, all parties were granted permission to appear. At the conclusion of the hearing the parties were informed that the Full Bench has decided to grant the NTEU permission to appeal, that the Full Bench upholds the appeal and that the Final Order is quashed. Appropriate orders were issued on the same day 5 and the reasons for that decision are set out below.

Decision at first instance

[3] The industrial action the subject of the s.418 application was summarised by Commissioner Wilson in the Decision as follows:

[4] It was submitted by RMIT in the proceedings below that the Results Ban is not authorised by the Protected Action Ballot Order (PABO) for the reason that the industrial action is inherently discriminatory and that is not contemplated by the question put to the employees of RMIT in the ballot. The PABO outlines the question to be put to the employees. It was a compounded question, and to the extent relevant, it stated:

[5] Before the Commissioner, RMIT submitted that:

[6] With respect to that s.418 application, the Commissioner made the following findings:

[7] Accordingly, Commissioner Wilson issued an Interim Order in accordance with s.420 of the Act and subsequently the Final Order which included the following terms:


[8] On 15 November 2013, the NTEU filed a Further Amended Notice of Appeal. The Notice listed the following grounds of appeal:

[9] At the hearing of the appeal, Senior Counsel appearing for the NTEU stated that the grounds relating to the Interim Order, being grounds 1 – 4, are not pressed.

[10] With respect to the grounds that are pressed, the NTEU submitted that on its face, the Results Ban falls within the express terms of ballot question (e). It was submitted that the use of the concept of “inherently discriminatory” by RMIT and the Commissioner in referring to the proposed industrial action is legally meaningless as there is no statutory or common law prohibition on discriminatory action per se. Accordingly, the Commissioner fell into error by dealing with the application before him on the basis of an unstated statutory restriction on actions that are, without further specification, described as “inherently discriminatory”.

[11] The NTEU submitted that there is a long line of authority in the Commission that has accepted that the protection action ballot questions may be framed at a level of generality and ballot question (e) is in a form that has been approved on many occasions. The Commissioner, it was submitted, fell into error by applying an erroneous interpretation of the Act concerning anti-discrimination provisions to hold at [27] of the Decision that a greater degree of specificity in the ballot question was required in this case than would otherwise be required.

[12] The NTEU noted that ballot question (e) provided for partial bans and that it would be quite clear and unsurprising to employees of RMIT, which has many campuses and places of business in Australia and abroad and several departments within the campuses, that the question allowed for bans that affected only one campus or department or some part of RMIT’s overall operations. Such a partial ban would readily be described as “inherently discriminatory” in that it affected one part of the operation and not others. However, it cannot be suggested that such a form of “discrimination” called for a more specific ballot question.

[13] For these reasons, it was submitted, the conclusion reached by the Commissioner at [32] of the Decision is legally erroneous in several respects, namely, in its premise about the inherent discriminatory nature of the Results Ban and secondly, and probably consequently, in the conclusion about the need for ballot question (e) to be differently framed.

[14] The NTEU sought permission to appeal on the basis that the appeal raises important questions as to the proper construction and application of the Act and the jurisdiction of the Commission.

[15] In response, RMIT submitted that the Commission should not grant the NTEU permission to appeal as it is not in the public interest to grant permission to appeal in circumstances where the NTEU has advised its members that they are not required to comply with the Commissioner’s Final Order and are entitled to continue to implement the Result Ban which he concluded was unprotected industrial action.

[16] As to the grounds of appeal, RMIT submitted that the Commissioner, at [27] of the Decision, concluded that the “‘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.” At [30], the Commissioner concluded that there is nothing within the phrasing used in question 4(e) of 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.” On this basis, he concluded that the industrial action which commenced on 1 October 2013 was not authorised by the ballot and was therefore unprotected. Each of these findings, it was submitted, is correct and should not be disturbed.

[17] RMIT submitted that the inherent character of the Results Ban is discriminatory. The unchallenged evidence before the Commissioner was that the overwhelming majority of students at the Singapore Institute of Management affected by the ban are Singaporean nationals. Students who are Australian citizens are expressly exempted from the ban. It should be noted that the evidence before the Commission suggested that there were in fact no Australian citizens currently studying at the Singaporean Institute of Management, so no Australian citizens would be affected by the Results Ban whether or not the express exemption was in place. In the proceedings before the Commissioner, the NTEU did not dispute that the application of the offshore Results Ban was dictated by the national extraction of the students subject to the ban, although on appeal, the NTEU submitted that national extraction and citizenship were not the same thing.

[18] It was further submitted that there was no evidence before the Commissioner that the NTEU has ever previously imposed bans at RMIT on offshore student assessment, which adversely affects students who are not Australian citizens. Accordingly, there is no past custom or practice by reference to which RMIT employees at the time of casting their ballot might have assumed or understood that the proposed industrial action would include bans which would have a discriminatory effect.


[19] In hearing an appeal from a s.418 decision, a recent Full Bench decision in Maritime Union of Australia v Patrick Stevedores Holdings Pty Limited 6 found that:

[20] We find no reason to depart from the above approach. Accordingly, the Decision of Commissioner Wilson should not be disturbed unless House v R 7 error is identified. The principles as set out in House v R are as follows:

[21] We find that, with respect, Commissioner Wilson relied on the wrong principle in finding that the Result Ban, because it is “inherently discriminatory”, was not authorised by the PABO.

[22] It is commonly accepted that in order to obtain a PABO, and accordingly undertake protected industrial action, the party seeking to obtain the PABO must specify in the application the nature of the proposed industrial action. Section 437 of the Act clearly states:

[23] A Full Bench in John Holland Pty Ltd v AMWU 8 (John Holland) stated:

[24] Once a PABO is issued by the Commission and industrial action gains support from the employees eligible to vote, the action is an “employee claim action” - assuming the other prerequisites are met. 9 Once proper notice is given in accordance with s.414 of the Act, the industrial action which is supported by the PABO and notified will be protected under the Act, subject of course to any application made pursuant to Part 3-3, Division 6 of the Act to suspend or terminate the protected industrial action.

[25] It is not the case that the nature of the action as identified in the PABO requires a high level of specificity. The Act clearly provides that the PABO must include “the nature of the proposed industrial action” and the Full Bench guidance in John Holland makes clear that the questions should be specific enough such that “employees are capable of responding to them”.

[26] In this instance, employees of RMIT were asked to support the NTEU’s proposed “Bans or partial bans on the recording, or transmission to the employer, of assessment results”. By the inclusion of “partial bans” in the question, the employees were asked to support bans which will potentially impact on some, but not all, of RMIT’s operations and students.

[27] If the concept of “discrimination” is taken at its widest, any partial ban on the recording or transmission of assessment results will be discriminatory as it affects some students differently from others. Accordingly, it cannot be said that the question put to the employees in the protected action ballot did not contemplate industrial action which was discriminatory in its effect because it impacted on some students and not others. As pointed out by the NTEU, discrimination broadly is not prohibited by any law in Australia, although discrimination on certain grounds (eg. race or sex) and in certain areas (eg. employment or provision of goods or services) is prohibited by various legislative instruments, including, to an extent, the Act.

[28] Even if the Results Ban is appropriately characterised as being unlawfully discriminatory, although we make no finding on that issue, we do not consider that the conduct is so different in its nature that it is not contemplated by the ballot as put to the employees, i.e. “Bans or partial bans on the recording, or transmission to the employer, of assessment results”.

[29] There is nothing in the Act which prohibits the taking of industrial action which is discriminatory in its effect because it has a differential impact on particular groups. The greater objects of the Act should not be read to limit the taking of industrial action, particularly in light of the objects in ss.3(f) and 436 of the Act, in circumstances where the Parliament did not expressly prohibit such conduct, or exclude such conduct from the general immunity expressed in s.415 of the Act, as it has done with defamation. 10 Clearly it was and remains open to the Parliament to include such an express prohibition in the Act if it so chooses.

[30] In light of the above, we find that the Commissioner erred in finding that the “inherently discriminatory” Results Ban was not authorised by the PABO. The Commissioner acted on the wrong principle and considered irrelevant material is evaluating the nature of the Results Ban in terms of the wider objects of the Act.


[31] Permission to appeal is granted on the basis that the appeal raises important questions as to the proper construction and application of the Act and the jurisdiction of the Commission. As the Full Bench has found that the NTEU has demonstrated an error in the Decision below, the appeal is upheld and the Final Order and the Interim Order are quashed.



H Borenstein of Senior Counsel for the National Tertiary Education Industry Union.

M McDonald of Senior Counsel and J Tracey of Counsel for RMIT University.

Hearing details:



November 21.

 1   PR544350.

 2   [2013] FWC 8829.

 3   PR544355.

 4   [2013] FWC 8915.

 5   PR544864.

 6   [2013] FWCFB 7736.

 7   [1936] 55 CLR 499.

 8   [2010] FWAFB 526.

 9   See s.409 of the Act.

 10   See s.415(2) of the Act.

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