Catholic Church Endowment Society Inc v Independent Education Union (South Australia) Incorporated

[2016] FWC 553

[2016] FWC 553

DECISION

Fair Work Act 2009

s.418—Industrial action

Catholic Church Endowment Society Inc T/A Catholic Education Office

v

Independent Education Union (South Australia) Incorporated

(C2016/2383)

COMMISSIONER PLATT ADELAIDE, 28 JANUARY 2016

Alleged industrial action at various South Australian Catholic Schools.

[1]        On 26 January 2016 the Catholic Education Office Inc T/A Catholic Education Office

(Catholic Education Office) lodged an application pursuant to section 418 of the Fair Work

Act 2009 (the Act). In this application the Catholic Education Office sought an order that

industrial action being taken by members of the Independent Education Union South

Australia Incorporated (IEU) stop.

[2]        The application was heard on 27 January 2016. The Catholic Education Office was

represented by Ms Webb of counsel and the IEU by Mr Bernardi.

[3]        The background to the application is as follows. Employees in a number of South

Australian Catholic Schools are covered by the South Australian Catholic Schools Enterprise

Agreement 2013 (the Agreement). On 19 March 2015 the Fair Work Commission granted a

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single interest employer authorisation to cover 16 Catholic school employers. A number of

protected action ballot orders were issued by Senior Deputy President O’Callaghan on 10

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November 2015. The Australian Electoral Commission subsequently conducted a ballot in

respect of each order. The results of the ballots were declared on 9 and 10 December 2015.

On 21 and 22 January 2016 the IEU gave the Catholic Education Office a number of notices

of industrial action proposed to be taken at the following schools - Kildare College, Cabra

Dominican College, St Joseph’s Memorial, Blackfriars Priory School, Sacred Heart College

and St Francis of Assisi School. The parts of the industrial action notices which give rise to

this application states:

“a ban on taking of relief lessons” and

“a 30 minute work stoppage (including supervision duties).”

[4]        The Catholic Education Office relied principally on the submissions contained in the

application. In summary the position of the CEO was that term “relief lesson” lacked clarity

as the definition of this term which is found at clause G.3.11 of the Agreement is qualified by

G.2.2.4 and G.3.14. It was submitted that this lack of clarity meant that the notice failed the

requirements of s.414 (6) of the Act.
[2016] FWC 553

[5]        The Agreement states:

“G.2.3.4 The undertaking of Relief Lessons shall not count towards the

totals expressed in sub-clause G.2.3.2 where the relief is undertaking within the

‘relieving’ Teachers’ normal amount of Student Contact Time…

G.3.11 Relief lessons means lessons or activities undertaken by a Teacher in lieu of

the Teacher usually assigned to that class or activity…

G.3.14 Student Contact Time means the total amount of time from Timetabled

Time that a Teacher is scheduled to exercise responsibilities (as listed in G.4.10)

either with individual students or with specified groups of students. A Teacher who is

assigned a less than full teaching load may be required by the employer to undertake

other activities up to the usual amount of Student Contact Time.”

[6]        Further, the Catholic Education Office submitted that the proposed 30 minute ban on

the performance of supervision duties was not covered by the scope of the ballot order and

that the withdrawal of supervision duties was beyond the industrial action authorised by the

protected action ballot.

[7]        The IEU contended that clauses G.2.3.4 and G.3.14 did not impact on the meaning of

clause G.3.11 and that the meaning of the term “relief lessons” was clear, and that the

protected action ballot order allowed for the stoppage of all work for a 30 minute period

which included supervision duties.

Findings

[8]        Section 418 states:

“(1) If it appears to FWC that industrial action by one or more employees or employers

that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

FWC must make an order that the industrial action stop, not occur or not be

organised (as the case may be) for a period (the stop period) specified in the

order.

Note: For interim orders, see section 420.

(2) FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

[2016] FWC 553

(i) a person who is affected (whether directly or indirectly), or who is

likely to be affected (whether directly or indirectly), by the industrial

action;

(ii) an organisation of which a person referred to in subparagraph (i) is a

member.

(3) In making the order, FWC does not have to specify the particular industrial action.

(4) If FWC is required to make an order under subsection (1) in relation to industrial

action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop

period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

FWC may state in the order whether or not the industrial action may be

engaged in after the end of that stop period without another protected action

ballot.”

[9]        The key issue in this matter is whether the proposed industrial action in question is not

protected action.

[10]      I am unable to accept that the definition of “relief lessons” contained in the Agreement

is in any way qualified by clauses G.2.3.4 and G.3.14. In my view the meaning is the term

“relief lessons” is easily understood by a review of clause G.3.11 and accords with the

ordinary meaning of that term. I find that the notice requirements for industrial action required

by s.414 (6) have been met in this circumstance.

[11]      I am also unable to accept that the proposal to refuse to undertake supervision duties

for a period of 30 minutes is in excess of the industrial action authorised by the protected

action ballot.
[2016] FWC 553

[12]      For these reasons I am unable to find that the action proposed to be taken is not

protected and thus the requirements of s.418 (1) has not been met and the application must

fail.

COMMISSIONER

Appearances:

Ms Y Webb of counsel on behalf of the Catholic Education Office.

Mr F Bernardi for the Independent Education Union.

Hearing details:

27 January 2016

Printed by authority of the Commonwealth Government Printer

<Price code A, PR576493>

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PR562160.

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PR573716; PR573715; PR57314; PR573713; PR573711 and PR573710.