By Lachlan Clarke.
Industrial action may be on the horizon for University of Melbourne employees as the National Tertiary Education Union has received approval from the Fair Work Commission (‘FWC’) to conduct a protection action ballot among its University of Melbourne members. Amid ongoing enterprise agreement bargaining, the NTEU alleges that there exists widespread member dissatisfaction over pay and the University’s heavy reliance on casual employees.
This article will provide an introductory overview of how industrial action at the University of Melbourne has the potential to impact JD students’ studies this semester through the halting of assessments. Additionally, this article will outline how NTEU v Monash University[1] impacts the manner in which University of Melbourne employees can carry out industrial action.
What is industrial action and how is it taken?
Section 19 of the Fair Work Act (‘FWA’) provides that industrial action includes any kind of performance of work ‘in a manner different from that in which it is customarily performed’ or ‘the adoption of a practice in relation to work by an employee, the result of which is a restriction or limitation on, or a delay in, the performance of work’. Employees or employers typically take industrial action to effect change in an industrial bargaining dispute once an enterprise agreement has passed its nominal expiry date.
At common law, if employees disobey a lawful and reasonable order of their employer or breach an express term of their contract through engaging in industrial action, an employer may be able to terminate their employment contract.
Recognising this, the FWA allows employees to take Protected Industrial Action (‘PIA’). PIA prevents employers from taking adverse action (e.g. dismissing/demoting employees etc.) ‘because’ of an employee engaging in PIA. Once the nominal expiry date of an existing enterprise agreement has expired, as it has for University of Melbourne employees, a bargaining representative can obtain permission from the FWC to conduct a Protected Action Ballot, as the NTEU has done so.
A successful Protection Action ballot will require a majority of NTEU University of Melbourne members on the voting roll must cast a vote. At least 50 per cent of voters must agree to take the specific industrial action sought for PIA to commence. If the Ballot is successful, University of Melbourne employees will have 30 days to commence industrial action unless an extension is successfully sought from the FWC.
As the NTEU reportedly has over 2000 University of Melbourne employee members, and voting times for recent Protected Action NTEU ballots have ranged from 3 days to 3 weeks, PIA would likely have to commence between late April and mid-May (second half of Semester 1), absent a FWC extension.
What sort of protected industrial action options are being considered?
Based on statements by the NTEU, eight different forms of PIA are being put to a vote. These include:
- A ban on conducting student assessments;
- A ban on applying penalties for late submission of student work;
- Work stoppages of up to 24 hours and indefinite stoppages;
- Ban on performing duties outside of those explicitly mentioned in position descriptions; and
- Bans on responding to phone calls or emails outside work hours
The potential PIA regarding a ban on conducting student assessments is particularly relevant to JD students reading this article.
A limitation on an academic’s ability to engage in PIA: NTEU v Monash University
However, University of Melbourne employees do not have an unfettered ability to engage in limitless PIA based on ballot approval from University of Melbourne NTEU members. Section 424(1)(c) of the FWA provides that the FWC may suspend or terminate PIA on the basis the PIA has threatened, is threatening, or would threaten “to endanger the life, the personal safety or health, or the welfare, of the population or of part of it”.
This issue arose in the bargaining dispute between the NTEU and Monash University in 2013. In NTEU v Monash University, Monash employees engaged in PIA by imposing indefinite bans on releasing end-of-semester student results. Monash University sought the suspension of the PIA based on s 424(1)(c) in that parts of the tertiary student population were at risk of suffering psychological harm, which could endanger their life or welfare. Expert psychological evidence brought by Monash was particularly impactful as it asserted that university students were particularly susceptible to stress, anxiety and associated psychological illnesses relative to the general population. While the NTEU instituted a process which enabled access to results for students likely to suffer greater adverse consequences as a result of the indefinite ban (law students applying for clerkships, medical students applying for placements, students graduating etc.), the FWC determined this was not sufficient to mitigate the ‘threatened endangerment’ to the lives and wellbeing of Monash students. As a result, the FWC suspended the PIA in the form of the results ban.
Application of the NTEU v Monash University to the University of Melbourne bargaining dispute
University of Melbourne employees may face significant limitations in pursuing PIA due to the perceived susceptibility of tertiary education students to psychological stress. While the exact details of the proposal are yet to be broadcasted, if the PIA takes the form of halting student assessments or the release of assessment marking as a corollary for an indefinite period during the examination period, there would be little to distinguish this form of PIA from the PIA suspended by the FWC based on s 424(1)(c) in NTEU v Monash University.
However, if the PIA concerning a ban on student assessments is limited to certain types of assessments (e.g. in-person vs online assessments) or occurs only for a fixed period and well before the examination period, an application by The University of Melbourne for suspension of the PIA under s 424(1)(c) may not succeed. The harm may be seen as too limited to ‘endanger the life, personal safety or health, or the welfare’ of University of Melbourne students due to the difference in scope. As the Full Bench of the FWC stressed, the ‘indefinite’ nature of the NTEU’s end-of-semester results ban and its timing was particularly likely to exacerbate risks to ‘part of the population’ of university students. Modification of these factors would likely allow the NTEU to distinguish their approach from the PIA taken in their dispute with Monash.[2]
Should the NTEU’s Protected Action Ballot be successful, and the protected industrial actions go forward, the degree to which it impacts the safety and welfare of University of Melbourne students must be seriously considered in light of NTEU v Monash University to avoid suspension by the FWC. A resulting s 424(1)(c) application may provide further clarity regarding the threshold of harm to third parties required for suspension of PIA in the university sector.
Students should keep themselves updated regarding the ongoing dispute between the NTEU and the University of Melbourne. This will ensure they are well prepared for any potential impacts on their studies as a result of PIA during the semester.
[1] [2013] FWC 5124
[2] Application by Independent Education Union of Australia [2018] FWC 6819, [100]
Purely Dicta 
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