Independent Education Union of Australia

[2017] FWC 4499

[2017] FWC 4499

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.615 - Application for referral to a Full Bench

Independent Education Union of Australia
(B2017/668, B2017/669, B2017/671, B2017/672, B2017/673, B2017/674, B2017/675, B2017/676, B2017/678, B2017/679, B2017/680)

VICE PRESIDENT HATCHER SYDNEY, 30 AUGUST 2017

Proposed protected action ballots of employees of the Trustees of various Roman Catholic Church Dioceses

[1] On 2 August 2017 the Independent Education Union of Australia (IEU) made eleven applications for protected action ballot orders (PABOs) pursuant to s.437 of the Fair Work Act 2009 (FW Act). Each application relates to the teaching employees of the Trustees of one of the Dioceses of the Roman Catholic Church in NSW and the ACT who are covered by the NSW and ACT Catholic Systemic Schools Enterprise Agreement 2015. The applications are currently before Commissioner Johns for determination. On 18 August 2017 the Catholic Commission for Employment Relations (CCER) foreshadowed in a written submission that the applications (or at least a question arising in the applications) be referred to a Full Bench of the Commission for determination pursuant to ss.582, 615 and 615A of the FW Act. However a formal application using the appropriate form was only submitted on 29 August 2017. The making of that application required the scheduled hearing of the applications before the Commissioner on that day to be vacated. The referral application is opposed by the IEU.

[2] On 28 August 2017 the President of the Commission, Ross J, delegated all of his functions and powers under the FW Act to me pursuant to s.584 of the FW Act, including his functions and powers under ss.582, 615 and 615A of the FW Act in respect of referral applications, for the period 29 August to 8 September 2017. Accordingly I will determine the CCER’s referral application.

[3] Sections 582, 615 and 615A of the FW Act provide:

582 Directions by the President

The President may give directions

(1)  The President may give directions under subsection (2) as to the manner in which the FWC is to perform its functions, exercise its powers or deal with matters.

(2)  The President may give a direction that is of a general nature, or that relates to a particular matter, to one or more of the following persons:

(a)  an FWC Member;

(b)  a Full Bench;

(c)  an Expert Panel;

(d)  the General Manager.

(3)  The direction must not relate to a decision by the FWC.

(4)  Without limiting subsection (2), the direction may be a direction of the following kind:

(a)  a direction about the conduct of 4 yearly reviews of modern awards under Division 4 of Part 2-3;

(aa)  a direction about the conduct of 4 yearly reviews of default fund terms of modern awards under Division 4A of Part 2-3;

(b)  a direction about the conduct of annual wage reviews;

(c)  a direction that 2 or more matters be dealt with jointly by one or more single FWC Members or one or more Full Benches;

(d)  a direction about the transfer between FWC Members (including a transfer between Full Benches) of one or more matters being dealt with by the FWC.

Persons must comply with the President's directions

(5)  A person to whom a direction is given must comply with the direction.

Note:          For directions to the General Manager, see section 658.

Direction is not a legislative instrument

(6)  If a direction is in writing, the direction is not a legislative instrument.

615 The President may direct a Full Bench to perform function etc.

(1) A function or power of the FWC may be performed or exercised by a Full Bench if the President so directs.

Note: The President gives directions under section 582.

(2)  The President may direct that the function or power be exercised by a Full Bench generally, or in relation to a particular matter or class of matters. 

(3)  To avoid doubt, a reference in this section to a Full Bench includes a reference to more than one Full Bench.

615A When the President must direct a Full Bench to perform function etc.

(1) The President must direct a Full Bench to perform a function or exercise a power in relation to a matter if:

(a) an application is made under subsection (2); and 

(b) the President is satisfied that it is in the public interest to do so.

 
Note: The President gives directions under section 582.

(2) The following persons may apply to the FWC to have a Full Bench perform a function or exercise a power in relation to a matter:

(a) a person who has made, or will make, submissions for consideration in the matter; 

(b) the Minister.

[4] The principles relevant to the determination of an application under s.615A were set out in Collinsville Coal Operations Pty Limited as follows (footnote omitted) 1: 

“[5] The issue for determination is whether I am satisfied that it is in the public interest to refer the agreement approval application to a Full Bench. The expression 'in the public interest', when used in a statute, imports a discretionary value judgment to be made by reference to undefined factual matters and confined only by the subject matter, scope and purpose of the relevant statute. [O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216 per Mason CJ, Brennan, Dawson and Gaudron JJ]

[6] Sections 577 and 578 of the FW Act are relevant to the exercise of the President’s powers under s 615A.

[7] Section 577 provides as follows:

The FWC must perform its functions and exercise its powers in a manner that:

(a) is fair and just; and

(b) is quick, informal and avoids unnecessary technicalities; and

(c) is open and transparent; and

(d) promotes harmonious and cooperative workplace relations.

Note: The President also is responsible for ensuring that the FWC performs its functions and exercises its powers efficiently etc. (see section 581).

[8] Section 578 directs the Commission to take into account, among other things, the objects of the FW Act and ‘equity, good conscience and the merits of the matter’.

[9] Section 581 is also apposite. It provides, relevantly, that the President is responsible for ensuring that the Commission performs its functions and exercises its powers in an efficient manner.”

[5] A critical issue which has arisen in respect of the IEU’s eleven PABO applications is whether the eleven Catholic Church dioceses the subject of those applications are “single interest employers” as defined in s.172(5). Section 172(5) provides:

(5)  Two or more employers are single interest employers if:

(a)  the employers are engaged in a joint venture or common enterprise; or

(b)  the employers are related bodies corporate; or

(c)  the employers are specified in a single interest employer authorisation that is in operation in relation to the proposed enterprise agreement concerned.

[6] Multiple employers who are “single interest employers” may make a single-enterprise agreement pursuant to s.172(2) of the FW Act. If they are not “single interest employers”, they may only enter into a multi-enterprise agreement pursuant to s.172(3). The importance of the distinction for present purposes is that s.413(2) prohibits the taking of protected industrial action in relation to a proposed multi-enterprise agreement and s.437(2)(b) does not permit an application to be made for a PABO if the proposed enterprise agreement is a multi-enterprise agreement. Therefore if the proposed agreement to which the PABO applications relate could only be made as a multi-enterprise agreement and not a single-enterprise agreement, the applications cannot be granted, at least on the basis that they are currently advanced.

[7] The CCER does not seek that the entirety of the eleven PABO applications be referred to a Full Bench. Rather, it seeks only that the question of whether the Dioceses the subject of the applications constitute are single interest employers be referred to a Full Bench. It submits that this issue should be referred because the IEU’s case that the eleven Dioceses have a common purpose, being the operation of education institutions for the benefit of the Roman Catholic Church, and thus are single interest employers as defined in s.172(5)(a), would if accepted have wider implications. The immediate implication is said by the CCER to be that it would call into question the validity of the NSW & ACT Catholic Systems Schools Principals Multi-Enterprise Agreement 2017, which covers principals at schools run by ten of the eleven dioceses the subject of the current PABO applications. It might also affect other multi-enterprise agreements approved by the Commission that apply to employers who have a relationship with a religion.

[8] I consider that the primary consideration which arises in connection with the CCER’s referral application is the need to conform with s.441(1), which provides that “The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made”. It is already four weeks since the IEU lodged its applications. If the result of a referral is further and unnecessary delay, the referral should not occur unless there is some powerful countervailing consideration.

[9] The referral application does not involve the determination of a question of law which has wider application beyond the scope of these matters. The question which is proposed to be referred is a factual one - that is, whether the eleven Dioceses constitute a common enterprise as contended by the IEU. I cannot identify any particular advantage in having this factual question determined by a Full Bench rather than a single member of the Commission. The proposition that the answer to this question may have implications for other multi-enterprise agreements, because the FW Act imposes different employee voting requirements for single-enterprise agreements as compared to multi-enterprise agreements (see s.182), seems to me to be more theoretical than real. In any event, if the proposed referral took place, the Full Bench would not have the power to make declarations concerning the validity of other multi-enterprise agreements, nor would there be any proper basis for the expression of any opinion about their validity.

[10] As a practical matter, it will take significantly longer for a Full Bench to be assembled and to find a date for a hearing than for a single member to deal with the issue. Further, as the CCER made clear in its oral submissions, the determination of the question proposed to be referred would not necessarily be determinative of the applications. If the Full Bench determined that the eleven Dioceses were in fact single interest employers, there would remain further issues raised by the CCER to be determined, including whether the “notification time” requirement in s.437(2A) and the “genuinely trying to reach an agreement” requirement in s.443(1)(b) are satisfied.

[11] Consequently I can identify no public interest consideration or procedural advantage which favours the grant of the referral application, and I consider that referral would only cause unnecessary delay in the determination of the applications contrary to the legislative policy evinced by s.441. The referral application is therefore refused.

VICE PRESIDENT

Appearances:

D. O’Sullivan of counsel for the Catholic Commission for Employment Relations.

M. Gibian of counsel for the Independent Education Union of Australia.

Hearing details:

2017.

Sydney:

30 August.

 1   [2014] FWC 3129; 246 IR 21

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