Australian Education Union v Bendigo Kangan Institute, Box Hill Institute, Chisholm Institute, Gippsland Institute of Technical and Further Education, Gordon Institute of TAFE, Goulburn Ovens Institute of TAFE, - [2024] FWC 608

[2024] FWC 608

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Education Union
v

Bendigo Kangan Institute, Box Hill Institute, Chisholm Institute, Gippsland Institute of Technical and Further Education, Gordon Institute of TAFE, Goulburn Ovens Institute of TAFE, Holmesglen Institute of TAFE, Melbourne Polytechnic, South West Institute of TAFE, Sunraysia Institute of TAFE, William Angliss Institute of TAFE, Wodonga Institute of TAFE

(B2024/187)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 7 MARCH 2024

Proposed protected action ballot of employees of Bendigo Kangan Institute, Box Hill Institute and Others

This is an application by the Australian Education Union (AEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Bendigo Kangan Institute, Box Hill Institute, Chisholm Institute, Gippsland Institute of Technical and Further Education, Gordon Institute of TAFE, Goulburn Ovens Institute of TAFE, Holmesglen Institute of TAFE, Melbourne Polytechnic, South West Institute of TAFE, Sunraysia Institute of TAFE, William Angliss Institute of TAFE and Wodonga Institute of TAFE (collectively the Employers).

The AEU and the Employers are bargaining for a multi-enterprise agreement involving a group of employers who are not (all) related employers.[1] This follows from the Commission, on 28 November 2023, granting a single interest employer authorisation[2] under s.249 of the Act in relation to the proposed agreement. The Employers are all covered by the authorisation.

I observe that this is the first s.437 application involving a proposed multi-employer agreement of this kind since the amendments made to the Act by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 came into force.[3]

On 5 March 2024, the Commission was advised that the Employers did not object to the Application.

Given the nature of the application and certain matters to be raised by the Commission, I have conducted a hearing to determine this matter.

Section 437A of the Act provides as follow:

“437A Application for a protected action ballot order--multi-enterprise agreements

1.This section applies if:

a) an application is made under section 437 for a protected action ballot order in relation to a multi-enterprise agreement; and
b) the group or groups of employees specified in the application under paragraph 437(3)(a) include employees of different employers.

Note:An application cannot be made under section 437 in relation to a cooperative workplace agreement: see paragraph 437(2)(b).

2.This Subdivision (other than paragraph 440(b)) has effect as if the application were multiple applications, one in relation to each employer, with each application being identical apart from only specifying under paragraph 437(3)(a) the group or groups of employees mentioned in paragraph (1)(b) of this section to the extent that the group or groups consist of employees of the relevant employer.

Example:A proposed multi-enterprise agreement will cover 3 employers: A, B and C. An application for a protected action ballot order is made under section 437 and specifies the employees of A and B as the groups…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Australian Education Union v Bendigo Kangan Institute, Box Hill Institute, Chisholm Institute, Gippsland Institute of Technical and Further Education, Gordon Institute of TAFE, Goulburn Ovens Institute of TAFE, [2024] FWC 608
Case: [2024] FWC 608
Decision Date: 7 MARCH 2024

CaseChat Overview and Summary

The Australian Education Union (AEU) has applied to the Fair Work Commission (FWC) for a protected action ballot order under section 437 of the Fair Work Act 2009, in relation to employees of multiple educational institutions. These institutions include Bendigo Kangan Institute, Box Hill Institute, Chisholm Institute, Gippsland Institute of Technical and Further Education, Gordon Institute of TAFE, Goulburn Ovens Institute of TAFE, Holmesglen Institute of TAFE, Melbourne Polytechnic, South West Institute of TAFE, Sunraysia Institute of TAFE, William Angliss Institute of TAFE, and Wodonga Institute of TAFE. The application is for a ballot to be conducted to authorise protected industrial action in relation to a multi-enterprise agreement. The FWC had previously authorised a single interest employer status for these employers in relation to the proposed agreement. The application marks the first instance since the amendments to the Fair Work Act by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022, where a section 437 application has been made for a multi-employer agreement.

The key legal issue before the Commission was whether the application for a protected action ballot order, made in relation to a multi-enterprise agreement, could be treated as separate applications for each employer under section 437A of the Act. Given that the employees specified in the application were from different employers, section 437A of the Act requires the FWC to treat the application as multiple applications, one for each employer. Each application would be considered separately to determine if the requirements for a protected action ballot order are met for the employees of each individual employer. This interpretation ensures that each employer's specific circumstances are considered in the determination process.

The FWC concluded that the application for a protected action ballot order should indeed be treated as separate applications for each employer, in accordance with section 437A of the Act. The Deputy President found that the AEU had satisfied all the requirements under section 443 of the Act, including demonstrating genuine efforts to reach agreement with the employers. The Commission determined that separate ballots would be conducted for the employees of each employer, with TrueVote Pty Ltd, an approved ballot agent, conducting the ballots. The closing date for voting in each ballot was set as 8 April 2024. Certain ballot questions were amended to address concerns raised by the Commission, and separate orders have been issued for each employer. The matter will proceed to a compulsory conciliation conference to facilitate further negotiations.

The Fair Work Commission, by the Deputy President, has ordered that separate protected action ballot orders be made for the employees of each of the employers. The ballots are to be conducted by TrueVote Pty Ltd, with voting closing on 8 April 2024. The Commission will issue an Order for a compulsory conciliation conference, requiring the attendance of all bargaining representatives to conduct meaningful negotiations. Directions may also be issued to ensure that the parties attend the conference prepared to negotiate effectively.

Orders