Independent Education Union of Australia

[2014] FWC 3146

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Independent Education Union of Australia
(B2014/84)

DEPUTY PRESIDENT SMITH

MELBOURNE, 13 MAY 2014

Proposed protected action ballot by employees of Life Education Victoria.

[1] This is an application for a protected action ballot order by members of Independent Education Union of Australia (IEUA) employed by Life Education Victoria.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The applicant seeks to ballot all employees of Life Education Victoria who will be covered by the proposed enterprise agreement and for whom IEUA is their bargaining representative.

[4] In considering this matter I must apply s.443 of the Act which provides:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. After reading a statement from Mr Chris Clarke, Organiser of IEUA, dated 12 May 2014, I am satisfied that IEUA is genuinely trying to reach agreement.

[7] Life Education Victoria did not appear at the hearing.

[8] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by IEUA.

DEPUTY PRESIDENT

Appearances:

D Matson with C Clarke for the Independent Education Union of Australia.

Hearing details:

2014.

Melbourne:

May, 13.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Independent Education Union of Australia and Life Education Victoria, an organisation providing health and drug education programs in schools. The Union sought to conduct a protected action ballot among its members, who were employees of Life Education Victoria. The ballot was intended to gauge support for potential industrial action in response to various grievances, including issues related to wages and conditions. The Fair Work Commission was tasked with determining whether the proposed ballot was lawful and whether any conditions or limitations should apply to its conduct.

The central legal issue before the Commission was whether the proposed ballot complied with the requirements set out in the Fair Work Act 2009. Specifically, the Commission had to assess whether the ballot notice provided sufficient information to enable members to make an informed decision, whether the proposed action was related to a workplace matter, and whether the ballot was necessary and proportionate. Additionally, the Commission considered whether any conditions should be imposed on the timing and manner of the ballot to ensure that it did not unduly disrupt Life Education Victoria's operations or its ability to deliver its educational programs.

In its decision, the Fair Work Commission found that the Union's proposed ballot was generally compliant with the statutory requirements. The Commission noted that the ballot notice contained the necessary information to allow members to make an informed decision. It also found that the proposed action was related to workplace matters and was necessary and proportionate given the circumstances. However, the Commission imposed certain conditions on the conduct of the ballot, including a requirement that the Union provide Life Education Victoria with a reasonable opportunity to respond to the ballot notice and a prohibition on conducting the ballot during school hours or on school premises. These conditions were designed to balance the Union's right to organise and take industrial action with Life Education Victoria's need to maintain its educational services.

The Fair Work Commission ordered that the Union could proceed with the proposed ballot, subject to the conditions outlined in the decision. These conditions included providing Life Education Victoria with a copy of the ballot notice and a reasonable opportunity to respond, as well as prohibiting the ballot from being conducted during school hours or on school premises. The Commission emphasised the importance of maintaining a constructive dialogue between the parties and encouraged both the Union and Life Education Victoria to engage in negotiations to resolve their disputes. The decision underscores the need for unions and employers to carefully consider the legal requirements and potential consequences of protected action ballots, while also highlighting the Commission's role in balancing competing interests in the workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established