Catholic Education Commission of Victoria v Independent Education Union of Australia
[2012] FWA 7274
•24 AUGUST 2012
[2012] FWA 7274 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Catholic Education Commission of Victoria
v
Independent Education Union of Australia
(C2012/4986)
COMMISSIONER ROE | MELBOURNE, 24 AUGUST 2012 |
s.418 application for an order that industrial action by employees stop, not occur or not be organised.
[1] This is an application by the Catholic Education Commission of Victoria Ltd (CECV) for orders under s.418 of the Fair Work Act 2009 (FW Act) that the Independent Education Union of Australia (IEUA) and the delegates, key members, officers, employees and members of the IEUA stop threatening, organising and engaging in industrial action. The Order sought is Attachment 1 to this decision.
[2] The CECV did not serve the application and the associated materials, including the proposed Order, on employees, members of the IEUA or delegates of the IEUA. An order for substituted service was sought by the applicant. I did not issue such an order. I considered that in the circumstances the CECV was likely to have good means of communication with each of the Catholic schools and the Catholic Education Offices. I note that the threatened action was several weeks away and that it was not alleged that any unprotected industrial action had occurred. I did not consider it appropriate in the circumstances to issue an Order for substituted service without receiving submissions from the IEUA and the CECV.
[3] Section 418 of the FW Act relevantly provides:
“418 FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA 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;
FWA 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) FWA may make the order:
(a) on its own initiative; or
(b) on application by either of the following:
(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, FWA does not have to specify the particular industrial action. ...” (underlining added)
[4] Evidence in the proceedings was given by Mr John Jordan, Acting Industrial Relations Manager of the Industrial Relations Unit within the Catholic Education Office, Melbourne (CEO). 1 The Industrial Relations Unit provides industrial relations services to Victorian Catholic primary and secondary schools (Catholic Schools) and to the Victorian Catholic Education Offices on behalf of the CECV. The Victorian Catholic Education Multi Employer Agreement 20082 (the Agreement) regulates the conditions of employment for teachers in the Catholic Schools and Catholic Education Offices. The nominal expiry date of the Agreement is 31 December 2011. The CECV is the appointed bargaining representative for the employers covered by the Agreement. There are 486 schools and 4 Catholic Education Offices covered by the Agreement. There are 22,723 staff employed in the Catholic Schools and 587 staff in the Catholic Education Offices. There are 194,108 students.
[5] The Catholic Employers Negotiating Team (CENT), of which Mr Jordan is a member, is the negotiating team of the CECV and is currently bargaining with the IEUA and other bargaining representatives for a new multi-enterprise agreement. There have been seven bargaining meetings between CENT and the IEUA since 29 May 2012.
[6] The IEUA has not made an application for a protected action ballot. The bargaining for a multi-enterprise agreement makes this problematic due to the operation of s.437 of the FW Act.
[7] The evidence establishes that the Committee of Management of the IEUA directed the General Secretary, Ms Debra James, to communicate with members and call on them to participate in a day of protest against the Government of the State of Victoria (the State Government) in the first week of September 2012. The rates of pay in the agreements between the CECV and the IEUA have since 1997 been linked to the rates of pay in the relevant industrial agreement for state school teachers. The IEUA have joined with the Australian Education Union in protesting against the pay offer for Victorian state school teachers and the pay policy of the Victorian Government. The CECV wrote to the IEUA on 1 August 2012 seeking confirmation as to whether the IEUA will be taking stopwork action in support of the AEU or in relation to a protest against the State Government in the first week of September 2012. Ms James responded on 3 August 2012 that: “IEU members have traditionally engaged in political participation in the affairs of the day. The Union is committed to ensuring that there is freedom of political expression and democratic participation. The undertaking you seek would infringe such fundamental rights.” 3
[8] On 2 or 3 August 2012 the CECV suspended negotiations. The CECV stated that the suspension was until a commitment was given by the IEUA that they will bargain in good faith without the threat of industrial action.
[9] A circular from the IEUA “calls on all members in Catholic Education to participate in a protest on Wednesday 5 September, at the Royal Exhibition Building in Carlton”. 4 The evidence is that the action on 5 September 2012 will consist of a meeting or rally at 10.30 am followed by a march to Parliament House. None of the IEUA material produced by the CECV refers to the activity on Wednesday 5 September as industrial action or as a stop work but it is referred to as a “protest” or “day of protest” and it is described as a protest for a “fairer pay deal”.5 The IEUA material clearly links the achievement of a better pay deal for state school teachers to the achievement of a better pay deal in the negotiations with the CECV.6 The IEUA material suggests that the union expects that many teachers will join the protest action.7 The IEUA advice to representatives states: “Will the protest be ‘protected action’? Unfortunately not.”8
[10] The IEUA on 20 August 2012 advised members that:
“Late yesterday, in an unprecedented move, the Catholic Education Commission of Victoria (CECV) made an application to Fair Work Australia to try and stop our planned protest on Wednesday 5 September. Never before in the history of the union has such an aggressive industrial strategy been adopted by the Catholic employer representatives. No such application was made in respect of similar action taken by IEU members in 2004 and 2008. Members will be rightly outraged by this attempt to gag their political expression.
The CECV is actively attempting to prevent staff in Catholic schools standing up for themselves. Your wages outcome will be determined by the State Government, yet the CECV has the audacity to suggest that we have no business seeking to influence that outcome.” 9
[11] Mr Jordan gave evidence that if IEUA members participate in the protest it is likely to impact on the functioning of schools and on students and their parents. Mr Jordan pointed to advice to representatives from the IEUA to let principals know about the number of teachers who intend to participate in the protest but not to identify the particular participants. 10 Mr Jordan gave evidence that the failure to give advance notice of the particular participants could make planning to minimise disruption and risks to students more difficult. The CECV argued that that is evidence of an expectation that absences from work will not be approved. I do not find this to be a reasonable inference. Advising principals could lead to discussions about arrangements for participation which are acceptable to those concerned at the particular school. If this does not occur then the advice of the IEUA is to not give advance notice of the particular participants. There is inadequate evidence to determine this matter.
[12] There was no evidence concerning:
- The attitude of particular employers or individual schools or individual school principals to the proposed protest action and the participation of teachers in that action.
- The affect on schools, the level of participation and the extent to which participation was approved by schools in the previous action in 2004 and 2008.
- The attitude of individual teachers or IEUA members and the likelihood that they will participate in the proposed protest action.
- The number of individual teachers who may participate in the action on approved leave or during non-working time in the case of part time staff.
[13] I am satisfied that:
- The IEUA is encouraging Catholic School employees to participate in the day of protest on 5 September 2012.
- The day of protest is planned to involve a mass meeting at 10.30 am and then a march to Parliament House and a rally at Parliament House.
- The protest is political in nature in that it is designed to protest the State Government pay policy and is designed to persuade the State Government to change that policy. However, it is also industrial in character as the pay policy of the State Government will directly affect the wages outcome which is likely to be achieved in the bargaining between the IEUA and the CECV. At least in part, the finances available to fund Catholic Schools comes from the State Government.
- The protest action is not divorced from industrial disputation and bargaining.
- If members of the IEUA respond to the encouragement of the IEUA for them to participate in the protest action and, if they do so without approval from their employer, or if they do so when not on leave or in non-working time, then they will be engaging in unprotected industrial action.
[14] The IEUA argue that there is no evidence that the proposed action will be unprotected industrial action as defined by s.19. They argue this because the action may be authorised by the employer or may be undertaken on authorised leave. Furthermore the order sought relates to all schools and there is no evidence that the action is likely to occur at each location.
[15] The CECV submitted that “it is not possible for an employee to participate in the protest without that employee absenting himself/herself from ordinary work”. 11 I do not accept this submission. In my view there is no evidence to suggest that some employees will not participate with approval from their employer, whilst on leave or in non-working time. However, equally there is no evidence that the IEUA is advising members that they should only participate under such conditions. It is therefore reasonable to conclude that at least to some extent the IEUA is organising threatened industrial action by encouraging members to participate in the proposed protest action.
[16] The IEUA argue that the CECV is not a person affected or likely to be affected by the alleged industrial action and therefore has no standing to bring the application. Mr Jordan gave evidence that the CECV is the bargaining representative for the employers but he gave no evidence that the CECV was specifically authorised by the employers to bring this application. Mr Jordan did not give any evidence of direct effect of the threatened industrial action on the CECV.
[17] In response to this submission the CECV indicated that they were prepared to call Mr Jordan to give evidence that the employers had in fact authorised the CECV to bring the application and to give the IEUA an opportunity, after time to get instructions, to cross examine Mr Jordan if required. The CECV also argued that the industrial action would have a direct effect on bargaining about the wages outcome and this affected the CECV as a funder and organiser of Catholic education.
[18] I am aware that the Catholic Education Office and the CECV have a major influence on the policy and practices of the Catholic schools notwithstanding that each school is a separate employer. The Catholic Education Office and the CECV has a direct influence on the resources available to particular schools and employers. I am satisfied that the CECV is a person who is likely to be affected, whether directly or indirectly, by the alleged industrial action. CECV can make the application pursuant to s.418(2).
[19] In the Full Bench decision in “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) v UGL Resources Pty Ltd; Conneq Infrastructure Services (Australia) Pty Ltd 12 the reasoning of the majority of the Full Court of the Federal Court in the Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission13 (the Transport Workers’ Case) was utilised to explain the nature of the findings of jurisdictional fact which are required in matters such as these.
“[19] It follows that FWA has no jurisdiction to make an order under s.418 unless it is satisfied that unprotected “industrial action by one or more employees”:
(a) is happening; or
(b) is threatened, impending or probable; or
(c) is being organised.
[20] If FWA is satisfied that one of these alternatives exists then “FWA must make an order that the industrial action stop, not occur or not be organised (as the case may be).” Putting aside issues around what may be described as incidental or ancillary ‘machinery’ orders, these are the only types of order that FWA has power to make. If FWA finds that unprotected industrial action is happening it has a duty to make an order that that action stop. If FWA finds that unprotected industrial action is threatened, impending or probable, it has a duty to make an order that that action not occur. If FWA finds that industrial action is being organised then it has a duty to make an order that the industrial action not be organised. However, FWA is not empowered to make an order that industrial action stop unless it is satisfied that industrial action is happening. FWA is not empowered to make an order that industrial action not occur unless it makes a finding that industrial action is threatened, impending or probable. FWA is not empowered to make an order that industrial action not be organised unless it makes a finding that industrial action is being organised.
[21] The Senior Deputy President rejected an attempt by the Respondent to have the order extend to the CFMEU. This was because there was no evidence of any CFMEU involvement on the site in the relevant period.
[22] The Senior Deputy President was not satisfied on the evidence that the AMWU “has organised or is organising any industrial action”. In the absence of such a finding the Senior Deputy President had no jurisdiction to make an order that the AMWU not organise industrial action. Moreover, there is no evidence that the AMWU (or any of its officers or employees) were taking industrial action or threatening industrial action. The application before the Senior Deputy President was in response to strike action that occurred on 10 May 2011 in relation to a particular issue. On 11 May 2011 new employee grievances emerged and a stoppage of work continued in relation to those new grievances. An AMWU organiser attended the site, apparently at the request of the employer - suggesting that the AMWU was present in a ‘firefighting’ capacity to try and assist in procuring an end to the industrial action that had been occurring. The AMWU organiser did and said nothing to suggest that the AMWU had in any way organised, aided, abetted, counselled, procured, induced or authorised any employees to engage in industrial action that was being taken by employees on 11 May 2011 in relation to the newly advanced grievances. The organiser’s role, on the evidence, was limited to endeavouring to persuade the employees to return to work (and deal with the ‘new’ grievances through the dispute resolution mechanism) and conveying information about the position of the employees to management. It appears that the Senior Deputy President’s only reason for including the AMWU, while excluding the CFMEU, was “for reasons of the participation of the AMWU in the process this morning in respect to the various matters about which employees were aggrieved” 14 and “the role of the AMWU in respect of today’s grievances.” However, there was nothing in the evidence or in the reasons of the Senior Deputy President going to the role of the AMWU on 11 May 2011 that, in our view, could properly ground a finding that the AMWU was lending any encouragement for, or support to, the industrial action that had been occurring and was occurring on that day. It follows that order 4(c) is affected by jurisdictional error.
[23] For these reasons, on the rehearing we are not persuaded that any order should issue against the AMWU (or its officers or employees). Different considerations apply in relation to order 4(d) directed, as it is, to “the co-delegate of the AMWU”. That person is an employee of the Respondent - as distinct from an officer or employee of the AMWU - and thus someone to whom an order could properly be directed because the employees were taking unprotected industrial action and it may properly be inferred on the evidence before the Senior Deputy President that the delegate was participating in that action.
[24] In relation to order 4(d), there is an issue as to the extent of incidental or ancillary orders that can be supported by the confined power conferred by s.418 once the jurisdictional prerequisites in s.418(1) have been satisfied. Given the tenor of paragraphs [19] and [20] of the majority judgment in the Transport Workers Case, on the rehearing we have some concern at whether a power to order that industrial “stop, not occur or not be organised (as the case may be)” can support an order like order 4(d) that places an obligation on an employee who is a delegate to take affirmative action - as distinct from stopping or refraining from conduct - in the form of giving a “direction” to other employees in circumstances where the delegate would seem to have no power of direction over those employees and where strict compliance with an order of that sort, on one view, could oblige a delegate to incur non-trivial time and monetary costs seeking out employees depending on the time the order is made and whether the employees engaging in industrial action are at work at the time. This question, which is ultimately a question of statutory construction, was not the subject of argument and we think it better to refrain from considering it further in these reasons.” (references removed)
[20] The Full Bench in its decision considered and distinguished these issues from the findings of a Full Bench in Victorian Hospitals’ Industrial Association v Health Services Union of Australia. 15 Based upon the Full Bench reasoning the facts do not support a finding that industrial action is happening. An order that industrial action stop is therefore not appropriate. There is sufficient evidence that the IEUA is organising industrial action for 5 September 2012. It is therefore necessary that there be an Order that the IEUA not organise industrial action.
[21] Some employees in response to the organising of the IEUA may take unprotected industrial action. In this sense it may be that unprotected industrial action by employees is threatened, impending or probable. However, there is no evidence of employees threatening the industrial action or being involved in the threatened action and there is no evidence of the extent to which it is likely that employees will participate in unprotected industrial action.
[22] Employees have not been served with the application for orders in this matter and therefore have had limited opportunity to respond. Substituted service may be appropriate in some circumstances but it is not the default position under the legislation. In the circumstances there would be some injustice. 16 I accept that in some circumstances service on the union is accepted as sufficient on the basis that it is reasonable to assume that the union is able to represent the interests of its members. However, given the gravity of the consequences of an order as set out in the TWU decision, and the availability of time in the circumstances of this case, given that the threatened action is two weeks away, the lack of service is a factor which stands against making an order applying to employees.
[23] There is no evidence of the extent to which particular schools may be involved. As discussed earlier there is no evidence as to the extent to which employees may participate with approval of the employer or on authorised leave. There is no evidence that the IEUA or employees are organising or threatening any other industrial action than the proposed protest action of 5 September 2012. There is no basis for drawing an inference that further industrial action is probable or likely. There is no history of such action. There is evidence of protest action in previous years and evidence that there was no application to stop unprotected industrial action in those occasions.
[24] In all of the circumstances the only order which I must make is an Order that the IEUA not organise unprotected industrial action and that the IEUA not take threatened, impending or probable unprotected industrial action. I do not consider that I am required to issue orders against employees or against members of the IEUA, nor do I consider it is appropriate in the particular circumstances. There is insufficient evidence to conclude that they are taking or organising or threatening industrial action.
[25] I now consider the scope of the Order against the IEUA. What industrial action should it cover and for what period and what machinery or incidental orders if any are required to make the Order effective.
[26] The Order does not have to specify the particular industrial action. It can be broader than the particular industrial action being organised. 17 The Fair Work Bill Explanatory Memorandum states that “[t]his is intended to allow FWA to make effective orders that do not require the separate identification of each particular instance of industrial action.”18A Full Bench of the Tribunal in VHIA v ANF19 emphasised the importance of considering the period of the Order and the scope of industrial action covered by it in the context of what is calculated to achieve the purpose of the section.
[27] I sought supplementary submissions from the parties on 23 August 2012 as to the appropriate scope of the orders against the IEUA. I considered the submissions in arriving at my conclusions.
[28] As there is no threat of other action and no evidence to suggest that other action is likely and, given the overall circumstances and history, I do not consider it appropriate that the order should extend beyond the 6 September 2012.
[29] In the circumstances of this case I see no reason why action other than the particular action which is being organised, that is the proposed protest action on 5 September 2012, should be covered by the Order. There is no threat of other action and no evidence to suggest that other action is likely. In the circumstances of this case making an Order that is confined to and targeted at a particular action is more likely to achieve the objective of achieving the purpose of the section. This is because the focus of all involved will be on the particular relevant action. A more general provision about all or any unprotected industrial action would have less clarity and impact. Of course where there has been a recent history of unprotected industrial action or threatened industrial action or a likelihood of other unprotected industrial action broader orders may be appropriate. The Order should be confined to requiring the IEUA not to organise or engage in unprotected industrial action by encouraging members of the IEUA employed by the Employers to refuse or fail to attend for work, without authorisation or approved leave, in order to participate in the proposed protest action on 5 September 2012.
[30] I consider that the appropriate machinery provision to be that advice be given via Twitter and Facebook ,the principal means by which advice of the proposed protest action has been given by the IEUA to members, that the stoppage on 5 September 2012 is cancelled. I do not consider it is necessary to add the words proposed by the CECV that “all members must attend work and perform work in the usual manner”. I am not convinced that there is a risk of any other action than a failure or refusal to attend work in order to attend the proposed protest action. The evidence in the material attached to the statement of Mr Jordan is quite strong that this is all that the IEUA has been organising and threatening to organise.
[31] The CECV are seeking that delegates be included in the Order and that the IEUA be required to send a further circular to employees about the Order and also that the IEUA provide evidence of compliance to the CECV or FWA. The observations I have made about the evidence in respect to employees applies also to workplace delegates. Under the rules some delegates may be officers of the IEUA and to the extent that this applies they will be covered by the Order. If they do not have such responsibilities under the rules of the union then in the circumstances of this case I do see it as appropriate for the Orders to apply to them. I consider the CECV capable of informing schools and their employees of the Order and it is not appropriate or necessary for the achievement of the objective of the FW Act in the circumstances of this case to require further action by the IEUA. However, I do think it appropriate to require that the General Secretary advise IEUA employees, officers and sub-branch representatives of the Order.
[32] Some aspects of the Order 4.2 sought by the CECV are contrary to the Transport Workers Case and the observations in the passage from the AMWU v UGL case quoted earlier. 20 Furthermore, I see no reason why in the circumstances of this case, apart from the requirement I impose on Ms James in respect of communication with employees and sub-branch representatives of the IEUA, the employers and the IEUA cannot effectively provide information about the Orders in this case to the extent it is necessary.
[33] I will make the following Order:
“Pursuant to s.418(1) of the Fair Work Act 2009, Fair Work Australia orders as follows:
1. TITLE
This Order shall be known as the Victorian Catholic Education – Unprotected Industrial Action Order 2012 No. 1 (the Order).
2. APPLICATION AND PARTIES BOUND
2.1 This Order is binding on and applies to:
(a) the Independent Education Union of Australia (IEUA);
(b) the officers and employees of the IEUA; and
(c) the Catholic Education Commission of Victoria Ltd (CECV) and the Employers.
3. DEFINITIONS
3.1 For the purposes of this Order, 'Employers' means the employers listed in Schedule A to this Order.
3.2 For the purposes of this Order, 'Member' means an employee of one (or more) of the Employers who is a member of the IEUA.
3.3 For the purposes of this Order, 'the stoppage’ means a stoppage of work by Members on 5 September 2012:
but excludes:
(a) action by Members that is authorised or agreed to by their Employer;
(b) action by a Member if:
(i) the action was based on a reasonable concern of the Member about an imminent risk to his or her health or safety; and
(ii) the Member did not unreasonably fail to comply with a direction of their Employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the Member to perform.
3.4 For the purposes of this Order, 'Negotiations' means the negotiations between the IEUA, CECV and other bargaining representatives, for an enterprise agreement to apply to the Employers and their employees.
4. INDUSTRIAL ACTION MUST STOP AND NOT BE ORGANISED
4.1 From the time of this Order, the IEUA its officers and employees, must:
(a) not organise and not engage in the stoppage involving any Member;
(b) not organise, aid, abet, direct, procure, induce, authorise, incite, advise, persuade or encourage any of the Members to engage in the stoppage; and
(c) not threaten or propose to do any of the things referred to in paragraphs 4.1(a) or 4.1(b).
4.2 The IEUA must:
(a) by 5.00pm on Friday 24 August 2012, send via Twitter and Facebook (using the IEUA’s Twitter and Facebook account used to inform Members about the Negotiations) a message in the following terms:
The IEUA stoppage on 5 September 2012 is cancelled. Deb James, IEUA Vic Tas General Secretary
(b) as soon as practicable, but in any case by no later than 5.00 pm on Monday 27 August 2012, ensure that General Secretary Debra James provides all officers, employees and sub-branch representatives of the IEUA with notification of the terms of this Order.
5. SERVICE OF THE ORDER
Without limitation as to other means of service, it will be sufficient service of this Order upon the IEUA its officers and employees if a copy of this Order is sent by email or facsimile, addressed to:
Ms Debra James
General Secretary
Independent Education Union of Australia
Email: [email protected]
Facsimile: (03) 9254 1865
6. TERM AND DATE OF EFFECT
This order shall come into effect from 3.00 pm on Friday 24 August 2012 and shall continue in force until 9.00 am on 6 September 2012.”
COMMISSIONER
Appearances:
Mr J Forbes of counsel and Mr A Prpich for the Catholic Education Commission of Victoria.
Mr H Borenstein of counsel and Mr K Farouque, solicitor, for the Independent Education Union of Australia.
Hearing details:
2012.
Melbourne,
August 22 and 23
<Attachment 1> ORDER |
Fair Work Act 2009
s. 418—Industrial action
Catholic Education Commission of Victoria Ltd
v
Independent Education Union of Australia
(C2012/ #)
| MELBOURNE, [DATE] |
Pursuant to s.418(1) of the Fair Work Act 2009, Fair Work Australia orders as follows:
7. TITLE
This Order shall be known as the Victorian Catholic Education – Unprotected Industrial Action Order 2012 No. 1 (the Order).
8. APPLICATION AND PARTIES BOUND
8.1 This Order is binding on and applies to:
(a) the Independent Education Union of Australia (IEUA);
(b) the delegates, key members, officers, employees and members of the IEUA; and
(c) the Catholic Education Commission of Victoria Ltd (CECV).
9. DEFINITIONS
9.1 For the purposes of this Order, 'Employers' means the employers listed in Schedule A to this Order.
9.2 For the purposes of this Order, 'Employee' means an employee of one (or more) of the Employers, who is employed in a Victorian Catholic School or Catholic Education Office and is eligible to be a member of the IEUA.
9.3 For the purposes of this Order, 'industrial action' has the meaning prescribed by section 19 of the Fair Work Act 2009 and includes:
(a) the performance of work by an Employee 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 the work;
(b) a ban, limitation or restriction on the performance of work by an Employee or on the acceptance of or offering for work by such an Employee; and
(c) a failure or refusal by Employees to attend for work or a failure or refusal to perform any work at all by Employees who attend for work;
but excludes:
(d) action by Employees that is authorised or agreed to by their Employer;
(e) action by an Employee if:
(i) the action was based on a reasonable concern of the Employee about an imminent risk to his or her health or safety; and
(ii) the Employee did not unreasonably fail to comply with a direction of their Employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the Employee to perform.
9.4 For the purposes of this Order, 'Negotiations' means the negotiations between the IEUA, CECV and other bargaining representatives, for an enterprise agreement to apply to the Employers and the Employees.
9.5 For the purposes of this Order, 'members of the IEUA' means members of the Victorian/Tasmania Branch of the IEUA who are employed in Victorian Catholic Schools and Catholic Education Offices.
10. INDUSTRIAL ACTION MUST STOP AND NOT BE ORGANISED
10.1 From the time of this Order until 28 February 2013, the IEUA, and the delegates, key members, officers, employees and members of the IEUA, must:
(a) stop, not organise and not engage in any industrial action involving any Employees;
(b) not organise, aid, abet, direct, procure, induce, authorise, incite, advise, persuade or encourage any of the Employees to:
(i) refuse or fail to attend for work as directed;
(ii) refuse or fail to perform any work at all; or
(iii) otherwise engage in any industrial action;
(c) not threaten or propose to do any of the things referred to in paragraphs 4.1(a) or 4.1(b);
(d) not maintain any organisation of any industrial action; and
(e) not maintain any incitement, advice, persuasion or encouragement of the type referred to in paragraph 4.14.1(b).
10.2 The IEUA must:
(a) by [time] and [date] send via email, Twitter and Facebook (using the IEUA's Twitter and Facebook accounts used to inform its members about the Negotiations) a message in the following terms:
IEUA industrial action cancelled. All members must attend work and perform work in usual manner on 5 September2012 and thereafter. Deb James, IEUA Vic Tas General Secretary
(b) by [time] and [date], issue and distribute to the members of IEUA a circular addressed to the Employees which:
(i) sets out the terms of this Order; and
(ii) states that industrial action against the Employers is unlawful, and is cancelled; and
(c) write to the CECV by [time] and [date], to advise what steps have been taken in compliance with clause 4.24.2(a) and 4.2(b) of this Order.
11. SERVICE OF THE ORDER
Without limitation as to other means of service, it will be sufficient service of this Order upon the IEUA and the delegates, key members, officers, employees and members of the IEUA if a copy of this Order is sent by email or facsimile, addressed to:
Ms Debra James
General Secretary
Independent Education Union of Australia (VictoriaTasmania)
Email: [email protected]
Facsimile (03) 9254 1865
12. TERM AND DATE OF EFFECT
This order shall come into effect from 9.00amon [insert date] 2012and shall continue in force until 9.00am on 28 February 2013.
COMMISSIONER [INSERT NAME]
SCHEDULE A – LIST OF EMPLOYERS
Archbishop and Bishops
Most Rev D J Hart DD
Most Rev P J Connors DD DCL
Most Rev C C Prowse DD STD
Most Rev L Tomlinson DD
Parish Priests
Rev John Allen
Rev Vincent Anh Nguyen
Rev John Aravankara
Rev Brendan Arthur
Rev Martin Ashe
Rev Eugene Ashkar
Rev Bill Attard
Rev Peter Austin
Rev Gerard Beasley
Rev Terry Bergin
Rev Peter Bickley
Rev Stephen Bohan
Rev Emmanuel Bonello
Rev Noel Brady
Rev Tom Brophy
Rev Hugh Brown O.Carm
Rev Eric Bryant
Rev Bernard Buckley
Rev Raymond Bugeja
Rev Francis Buhagiar
Rev Victor Buhagiar
Rev Joseph Bui duc Tien
Rev Ivano Burdian MSSP
Rev Kevin Burke
Rev William Burt SVD
Rev Barry Caldwell
Rev Andrew Camilleri
Rev Brian Carey
Rev David Cartwright
Rev Michael Casey
Rev Mgr Franco Cavarra
Rev Peter Claridge
Rev James Clarke
Rev Marcello Colastante
Rev Brian Collins
Rev Paul Connell
Rev Maurice Cooney
Rev John Corcoran
Rev Laurence Cortez
Rev Brian Cosgriff
Rev Dennis Crameri
Rev Malcolm Crawford
Rev Dr Terence Curtin
Rev Prakash Cutinha
Rev Brendan Davey
Rev Kevin Davine OMI
Rev Leo De Marzi
Rev Gerard Diamond
Rev Brendan Dillon
Rev Kevin Dillon
Rev Nicholas Dillon
Rev Martin Dixon
Rev Anthony Doran
Rev John Dowling
Rev Owen Doyle
Rev Justin Driscoll
Rev Jude D'Rozario SAC
Rev Thien Duc Vo
Rev John Dupuche
Rev Des Dwyer SJ
Rev William Edebohls
Rev Wayne Edwards
Rev Anthony Feeney
Rev Peter Ferwerda
Rev Andrew Fewings
Rev John Fitzgerald
Rev Martin Fleming
Rev Justin Ford
Rev Alan Fox
Rev Florentino Galdo CS
Rev William Gill
Rev Anthony Girolami
Rev Brian Glasheen
Rev Michael Grace
Rev Peter Grasby
Rev Edward Harte
Rev Patrick Harvey
Rev Andrew Hayes
Rev Brendan Hayes
Very Rev Dean Romuald Hayes
Rev Herman Hengel
Rev Arnold Heredia
Rev Anthony Hill
Rev Peter Hoang OMI
Rev Peter Hoang SDB
Rev Shane Hoctor
Rev David Hofman O.Carm
Rev Brendan Hogan
Rev Peter Hudson
Rev Barry Hughes
Rev Mgr Anthony Ireland STD EV
Rev Patrick Jackson SAC
Rev Raju Jacob MST
Rev Andrew Jekot
Rev Vincent Jewell
Rev Dispin John
Rev Vincent John CMI
Rev Gerard Johnson
Rev Francis Jones
Rev Shibu Joseph SAC
Rev Matthew Joseph TOR
Rev Michael Kalka
Rev Stephen Kandarapally Joseph
Rev Matthew Kannalayil
Rev Matthew Kannamthadathil
Rev Terry Kean
Rev Gerard Keith
Rev Mgr Peter Kenny
Very Rev Anthony Kerin EV
Rev Miroslaw Knap CR
Rev Pius Kodakkathanath vc
Very Rev Peter Kooloos
Rev Bernard Krotwaar
Rev Varghese Kurisingal
Rev Benedict La Volpe OFM
Rev Julian Langridge
Rev Nhan Le
Rev Vincent Le
Rev Alex Lim
Rev Stan Lim SJ
Rev Michael Linehan
Rev Manny Lomagno
Rev Joseph Lu Xin SVD
Rev Joven Lustre
Rev Noel Mackay
Rev Shane Mackinlay
Rev Alistair MacLellan
Rev John Madden
Rev Vel Maglica
Rev John Magri OFMconv
Rev Bernard Mahony
Rev Kevin Maloney
Rev Shanthaiah Marneni msfs
Rev Mgr Francis Marriott
Rev Peter Matheson
Rev Michael McEntee
Rev Peter McGrath OFM
Rev Adrian McInerney
Rev Kevin McIntosh
Rev Ross McKenney
Rev Gerard McKernan
Rev Peter-Damien McKinley
Rev Eugene McKinnon
Rev John McKinnon
Rev Michael McKinnon
Rev Joseph McMahon
Rev Laurence McNamara CM
Rev Gerald Medici
Rev Paul Mercovich
Rev Michael Miles
Rev Ed Moloney
Rev John Monaghan
Rev Francis Mondeddu msfs
Rev Michael Moody
Rev Barry Moran
Rev Stuart Moran
Rev Michael Morgan
Rev Michael Morley
Rev Patrick Moroney
Rev Patrick Mugavin
Rev Christopher Murphy MSC
Rev Leenus Neetany SAC
Rev Peter John Neivandt
Rev Thinh Nguyen
Rev Paul Nguyen Cong Tru
Rev Declan O'Brien
Rev Bernie O'Brien OMI
Rev Denis O'Bryan
Rev Michael O'Connell
Rev Sean O'Connell
Rev George O'Connor
Rev John O'Connor
Rev Chinua Okeke CSSp
Rev Frank O'Loughlin
Rev Grant O’Neill
Rev Stephen Onuoha
Rev John O'Reilly
Rev Peter O'Rourke
Rev Joseph O'Shea
Rev Lawrence O'Toole
Rev Michael O'Toole
Rev Tim O'Toole CP
Rev Desmond Panton
Rev Laurence Pearson
Rev John Petrulis
Rev Jude Pirotta MSSP
Rev Rod Pitts
Rev Charles Portelli
Rev Joseph Pothenparampil
Rev Gregory Pritchard
Rev Gerry Prunty
Rev Michael Pullar
Rev Anthony Quang SDB
Rev John Quinn
Rev Peter Rankin
Rev Paul Rankin OP
Rev Ian Ranson
Rev Peter Ray
Rev Brendan Reed
Rev Mark Reynolds
Rev Wahid Riad
Rev Michael Richardson
Rev Steven Rigo
Rev Denis Ryan
Rev Barry Ryan VG
Rev Luigi Sabbadin CS
Rev Michael Shadbolt
Rev Anthony Shallue
Rev Simon Shaner Jr OSPPE
Rev Michael Sierakowski
Rev Leonard Size
Very Rev Peter Slater
Rev Fabian Smith
Rev Anjou Soares
Rev Cornelio Solis CMF
Rev Anthony Spierings
Rev Gerard Spillane
Rev Denis Stanley
Rev Manuel Sunãz CMF
Rev Arsenio Tauzon
Rev Joseph Taylor
Rev Peter Taylor
Rev Edward Teal
Rev Matthew Thomas
Rev Barry Tobin
Rev John Tollan
Rev Mgr Anthony Toms
Rev Giang Tran
Rev Linh Tran
Rev Minh Tran SJ
Rev Kazimierz Trawicki CR
Rev David Tremble
Rev Greg Trythall
Rev Werner Utri
Rev William van de Camp
Rev Max Vodola
Rev Hien Vu
Rev Thang Vu
Rev John Walshe
Rev John Ware
Very Rev Ian Waters
Rev Desmond Welladsen
Rev Michael Wheeler
Rev Mgr John White
Very Rev Dean Andrew Wise
Rev Robert Wood
Rev Colin Xavier
Rev Albert Yogarajah
Rev Raymond Zammit MSSP
Rev Tadeusz Ziolkowski SC
Canonical Administrators
Rev John Allen
Mr Peter Annett
Rev John Aravankara
Rev Brendan Arthur
Rev Terry Bergin
Rev Peter Bickley
Rev Emmanuel Bonello
Rev Noel Brady
Rev Bernard Buckley
Rev Francis Buhagiar
Rev Victor Buhagiar
Rev Joseph Bui duc Tien
Rev Ivano Burdian MSSP
Sr Beth Calthorpe rsm
Rev Andrew Camilleri
Rev Mgr Franco Cavarra
Mr Rob Clancy
Rev James Clarke
Rev Marcello Colasante
Rev Brian Collins
Rev Paul Connell
Rev Maurice Cooney
Rev Laurence Cortez
Rev Malcolm Crawford
Rev Kevin Davine OMI
Rev Leo De Marzi
Mr Peter Devery
Rev Brendan Dillon
Rev Kevin Dillon
Rev Nicholas Dillon
Rev William Edebohls
Rev Anthony Feeney
Rev Alan Fox
Rev Florentino Galdo CS
Rev Anthony Girolami
Rev Brian Glasheen
Rev Peter Grasby
Rev Herman Hengel
Rev Arnold Heredia
Rev Malcolm Hewitt
Rev Peter Hoang OMI
Rev Shane Hoctor
Rev David Hofman Ocarm
Rev Brendan Hogan
Rev Peter Hudson
Mr David Huggins
Rev Barry Hughes
Rev Patrick Jackson SAC
Rev Raju Jacob MST
Rev Vincent Jewell
Rev Vincent John CMI
Rev Shibu Joseph SAC
Rev Stephen Kandarapally Joseph
Rev Matthew Kannamthadathil
Rev Gerard Keith
Very Rev Anthony Kerin EV
Mr Adrian Klep
Rev Miroslaw Knap CR
Rev Pius Kodakkathanath vc
Very Rev Peter Kooloos
Rev Bernard Krotwaar
Rev Nhan Le
Rev Vincent Le
Rev Herman Licayan
Rev Manny Lomagno
Rev Noel Mackay
Rev Alistair MacLellan
Rev John Madden
Rev John Magri OFMConv
Rev Bernard Mahony
Rev Shanthaiah Marneni
Rev Peter Matheson
Rev Michael McEntee
Rev Adrian McInerney
Rev Peter-Damien McKinley
Rev Brian McMahon
Rev Joseph McMahon
Rev Julian Messina OFM Cap
Rev Michael Miles
Rev Francis Reddy Mondeddu MSFS
Rev Michael Moody
Rev Barry Moran
Rev Christopher Murphy MSC
Rev Leenus Neetany SAC
Rev Paul Nguyen Cong Tru
Sr Mary Nuttall
Rev Declan O'Brien
Rev Denis O'Bryan
Rev Michael O'Connell
Rev Sean O'Connell
Rev John O'Connor
Rev Chinua Okeke CSSp
Rev John O'Reilly
Rev Peter O'Rourke
Rev Michael O'Toole
Rev Timothy O'Toole
Rev Desmond Panton
Rev Janusz Pawlicha OSPPE
Rev Laurence Pearson
Rev Jude Pirotta MSSP
Rev Rod Pitts
Rev Max Polak
Rev Charles Portelli
Rev Gregory Pritchard
Rev Gerry Prunty
Rev Anthony Quang SDB
Rev John Quinn
Rev Ian Ranson
Rev Mark Reynolds
Rev Michael Richardson
Rev Steven Rigo
Rev Luigi Sabbadin CS
Rev Michael Shadbolt
Rev Simon Shaner OSPPE
Rev Michael Sierakowski
Rev Leonard Size
Very Rev Peter Slater
Rev Fabian Smith
Rev Cornelio Solis CMF
Rev Anthony Spierings
Rev Denis Stanley
Rev Manuel Sunãz CMF
Rev Matthew Thomas
Rev Barry Tobin
Rev John Tollan
Rev Giang Tran
Rev Linh Tran
Rev Minh Tran SJ
Rev Kazimierz Trawicki CR
Rev David Tremble
Rev Greg Trythall
Rev Arsenio Tuazon
Rev Michael Wheeler
Rev Robert Wood
Rev Colin Xavier
Rev Albert Yogarajah
Rev Raymond Zammit MSSP
Rev Tadeusz Ziolkowski SC
Religious Institutes
Antonine College Sr Daad Azzi AS
Brigidine Sisters Sr Helen Toohey
FCJ Sisters Sr Judith Routier FCJ
Salesians of Don Bosco Rev. Frank Moloney
Sisters of The Resurrection Sr M Teresa Kozuszko CR
Trustees of the Christian Brothers Province of Oceania Br Vincent Duggan
Trustees of the Marist Brothers Southern Province Br Julian Casey
Incorporated Entities
Catholic Ladies' College Ltd
Damascus College Ballarat Inc
De La Salle College Inc
Emmanuel College Inc
Genazzano Council Ltd
Loreto College Ballarat Association Inc.
Loreto Mandeville Hall Association Inc.
MacKillop Family Services
Mater Christi College
Mercy Education Limited
Monivae College
Mount St. Joseph Girls College - Altona West
Our Lady of Sion College Ltd
Our Lady of the Sacred Heart College
Presentation College Windsor
Sacre Coeur College Ltd
Santa Maria College Ltd
Siena College Ltd
St Bede's College Inc
St Columba's College Ltd
Star of the Sea College Ltd
Villa Maria Society
Whitefriars College Inc
1 Exhibit CEO 1
2 AC316117
3 Exhibit CEO 1 Attachment 11
4 Exhibit CEO 1 Attachment 18
5 Exhibit CEO 1 Attachment 16
6 Exhibit CEO 1 Attachment 20
7 Exhibit CEO 1 Attachment 20
8 Exhibit CEO 1 Attachment 15
9 Exhibit CEO 2
10 Exhibit CEO 1 Attachment 15
11 Submission of CECV paragraph 28
12 (2011) FWAFB 4777 Paragraph 19-24
13 Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84
14 Ibid at PN265
15 Victorian Hospitals Industrial Association v Health Services Union (2008) 173 IR 120
16 Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84 at paragraph 42-44
17 Fair Work Act 2009 (Cth), s.418(3).
18 Fair Work Bill Explanatory Memorandum paragraph 1689
19 2011 FWAFB 8101 at paragraph 5-6
20 Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 171 IR 84 at paragraph 53 and (2011) FWAFB 4777 Paragraph 24
Printed by authority of the Commonwealth Government Printer
<Price code C, PR528308>
0
2
0