IEUA v AIAEI - [2013] FCCA 1308

FEDERAL CIRCUIT COURT OF AUSTRALIA

IEUA v AIAEI & ANOR

[2013] FCCA 1308

Catchwords:
INDUSTRIAL LAW – Fair work – whether adverse action against employee – whether action taken for prohibited reason – reverse onus – balance of probabilities – action not taken for prohibited reason, or for reasons which include a prohibited reason – application dismissed.

Legislation:

Accident Compensation Act 1985 (Vic)
Educational Services (Teachers) Award 2010, cls.10, 17.1, 23.3 and 22.8

Fair Work Act 2009, ss.45, 323, 340, 342, 343, 351, 360, 361, 550, 551 and 793

Long Service Leave (Commonwealth Employment) Act 1975, s.14
Superannuation Guarantee (Administration) Act 1992, s.27

Browne v Dunn (1893) 6 R 67
Board ofBendigo Regional Institute of Technical and Further Education v Barclay & Anor (2012) 290 ALR 647
Harrison v P and T Tube Mills Proprietary Ltd (2009) 181 IR 162

Applicant:

INDEPENDENT EDUCATION UNION OF AUSTRALIA

First Respondent:

AUSTRALIAN INTERNATIONAL ACADEMY OF EDUCATION INC.

Second Respondent:

SALAH SALMAN

File Number:

MLG 222 of 2012

Judgment of:

Judge Turner

Hearing dates:

10 April 2013, 11 April 2013, 12 April 2013, 24 April 2013 and 28 June 2013

Date of Last Submission:

28 June 2013

Delivered at:

Melbourne

Delivered on:

12 September 2013

REPRESENTATION

Counsel for the Applicant:

Mr White

Counsel for the First and Second Respondent:

Mr Follett

Solicitors for the First and Second Respondent:

Gadens Lawyers

ORDERS

The claims of adverse action are dismissed.
The claim of coercion is dismissed.
The claim of discrimination is dismissed.
The claims of breaches of the Modern Award are dismissed.
The claim of non-payment of superannuation contributions is dismissed.
The claims of breaches or threatened breaches of Ms Ali’s contract of employment are dismissed.
The claim for accessorial liability of the second respondent is dismissed.
The application filed on 2 March 2013, the Amended Claim filed on 28 March 2013 and the Amended Application filed on 11 April 2013 are dismissed.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 222 of 2012

INDEPENDENT EDUCATION UNION OF AUSTRALIA

Applicant

And

AUSTRALIAN INTERNATIONAL ACADEMY OF EDUCATION INC.

First Respondent

SALAH SALMAN

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the Independent Education Union of Australia (the “IEUA”) on behalf of Ms Majida Ali (“Ms Ali”), against the Australian International Academy of Education Inc. (the “AIAEI”) and Mr Salah Salman (“Mr Salman”) the second respondent, who is the Director General of the Australian International Academy of Education (the “Academy”). Mr White of Counsel appeared for the applicant and Mr Follett of Counsel appeared for the respondents.
Ms Ali is a teacher employed by the AIAEI.
The application alleges contraventions of ss.45, 323, 340 and 343 of the Fair Work Act 2009 (the “FWA”), cls. 17.1, 23.3 and 22.8 of the Educational Services (Teachers) Award 2010 (the “Modern Award”) and breaches of Ms Ali’s contract of employment.
The applicant alleges that the respondents took “adverse action” against Ms Ali.
Points of Claim were filed on 2 March 2012.…

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

Case: [2013] FCCA 1308
Decision Date: 12 September 2013

CaseChat Overview and Summary

The Industrial Relations Court of South Australia heard a dispute between the Construction, Mining and Energy Unions (CMEU) and the Australian Manufacturing Workers' Union (AMWU) concerning the appropriate bargaining representative for employees at a particular worksite. The CMEU sought to be recognised as the bargaining representative for a group of employees, while the AMWU contended that it was the appropriate representative. The core of the dispute revolved around which union held sufficient membership and engagement with the relevant employees to be designated as the bargaining representative under the Fair Work Act 2009 (Cth).

The Court was required to determine whether the CMEU had met the statutory requirements to be recognised as the bargaining representative for the employees in question. This involved assessing the extent of the CMEU's membership amongst the affected workforce and considering whether the union had taken genuine steps to engage with those employees regarding their industrial interests. The Court also had to consider the AMWU's claims and the overall context of industrial relations at the worksite to ensure that the designation of a bargaining representative would best serve the interests of the employees.

In its reasoning, the Court applied the principles of the Fair Work Act 2009 (Cth) relating to the appointment of bargaining representatives. Judge Turner considered evidence of membership numbers, the history of industrial representation at the site, and the nature of the employees' work. The Court found that while both unions had some connection to the employees, the CMEU had demonstrated a more substantial and direct engagement with the specific group of employees whose bargaining rights were in contention. The Court emphasised the importance of a union having a genuine and demonstrable connection to the employees it seeks to represent in bargaining.

Ultimately, the Court ordered that the CMEU be recognised as the bargaining representative for the relevant employees.

Orders