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

1. 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).

1. 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.

1. 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]

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

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

1. 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 of employees who are to be balloted. Under subsection (2) of this section:

a)   an application is taken to have been made specifying the employees of A; and

b)   a separate application is taken to have been made specifying the employees of B.

Subject to section 442, the FWC must deal with each of these 2 applications separately under section 443 and must make separate          protected action ballot orders in relation to the employees of each employer (if the requirements of section 443 are satisfied in relation to the employer).”

1. It is common ground that this application applies to a multi-enterprise agreement and that the other circumstances contemplated by s.437A of the Act apply. According, the Commission is obliged to treat this as an application to make a protected action ballot order for each of the Employers. This will consequentially require that a separate ballot is conducted in relation to the relevant employees of each of those entities.

1. On the basis of the material before me, including the declaration of Mr Justin Mullaly, Union Official, setting out the steps taken by the AEU in bargaining with the Employers and that it has been, and is, genuinely trying to reach agreement with them, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.  

1. The ballots are to be conducted by the TrueVote Pty Ltd (TrueVote). TrueVote has been approved as an eligible protected action ballot agent under s 468A of the Act[4] and consequently is authorised to conduct the ballots.

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close in each of the ballots is 8 April 2024.[5] This also established the ballot periods for the purpose of s.448A(2) of the Act.

1. Certain ballot questions were amended in response to concerns raised by the Commission.

1. Orders have been separately issued in PR772095, PR772097, PR772098, PR772099, PR772102, PR772103, PR772104, PR772105, PR772106, PR772017, PR772018 and PR772110.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Section 172(3) of the Act.

[2] PR767224.

[3] 6 June 2023 in relation to the relevant amendments.

[4] TrueVote Pty Ltd [2023] FWC 1446.

[5]  This is, in effect, 16 working days from the commencement of the ballots, as sought in the application.

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