Australian Education Union

[2014] FWC 4450

[2014] FWC 4450

FAIR WORK COMMISSION

DECISION

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

Australian Education Union
(B2014/914)

COMMISSIONER BISSETT MELBOURNE, 4 JULY 2014

Proposed protected action ballot by employees of the employers listed in the single-interest authorisation [PR539123].

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Education Union (AEU) for a protected action ballot order in relation to employees of the employers listed in the single-interest authorisation issued by Fair Work Commission in B2013/1028 [PR 539123]. An amended application was made on 1 July 2014.

[2] The single-interest authorisation covers 631 employers across the early childhood sector. On application of the AEU I made an Order for substituted service in respect of the application. As a consequence the Early Learning Association Australia (ELAA) was served with the application.

[3] The ELAA advised my chambers in writing that they opposed the application. A hearing was therefore held on 2 July 2014. Mr Bunn appeared for the AEU and Mr Lucas for the ELAA.

[4] On 3 July 2014 I issued an Order for the protected ballot action [PR 552710]. This decision outlines my reasoning for granting the Order.

[5] Section 443(1) of the Act states:

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.

[6] The ELAA objects to the application on the grounds that the Commission cannot be satisfied that the AEU is genuinely trying to reach agreement and that the application does not accord with s.437 of the Act as it does not specify the precise nature of the proposed industrial action in the question to be put to employees.

[7] In the event that I do issue the order, ELAA submits that there are exceptional circumstances justifying a period of written notice referred to in s.414(2)(a) of the Act being 7 working days.

[8] The AEU provides evidence from Shayne Quinn, Vice President (Early Childhood) of the AEU Victorian Branch, regarding matters in s.443(1) of the Act. Ms Quinn gives evidence as to the history of negotiations between the parties for an enterprise agreement to cover the employees sought to be balloted in their application. I accept her evidence.

[9] The AEU submits that it is genuinely seeking agreement with the ELAA, the parties have had 19 meetings and a further meeting is scheduled. 1

[10] I am satisfied that the application of the AEU has been made in accordance with the requirements of the Act. Further, on the basis of the evidence of Ms Quinn and the uncontested submissions from the ELAA, I am satisfied the AEU is genuinely trying to seek agreement.

[11] Having considered the submissions of the AEU and ELAA and the relevant authorities, I am satisfied in this case, given the nature of the work performed, that exceptional circumstances exist such that the written notice of industrial action should be 5 working days.

COMMISSIONER

Appearances:

D. Bunn of the Australian Education Union.

S. Lucas of the Early Learning Association Australia.

Hearing details:

2014.

Melbourne:

2 July.

 1  Exhibit AEU1 - Paragraph 8.

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<Price code A, PR552742>