DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Independent Education Union of Australia
v
Al Siraat College Inc T/A Al Siraat College
(B2019/407)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 MAY 2019

Proposed protected action ballot of employees of Al Siraat College Inc T/A Al Siraat College.

[1] This is an application by the Independent Education Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Al Siraat College Inc T/A Al Siraat College (Respondent).

[2] On 22 May 2019, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr Simon Schmidt of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR708574.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia brought an action against Al Siraat College Inc T/A Al Siraat College in the Federal Circuit and Family Court of Australia. The union sought a declaration that a proposed industrial action ballot of employees at the College was protected action within the meaning of the Fair Work Act 2009. The College opposed the application on the basis that the ballot did not constitute protected action because the employees were not acting in their capacity as employees. The Court was required to determine whether the ballot was protected action under the Fair Work Act, and whether the ballot was reasonably likely to achieve the employees’ objectives.

The Court examined the nature of the proposed ballot and the relevant provisions of the Fair Work Act. The employees intended to ballot on whether to take action in response to the College’s decision to reduce staff and increase class sizes. The Court noted that the proposed ballot was not a dispute between the employees and the employer, but rather a dispute about workplace conditions. The Court held that the proposed ballot was not protected action because it was not undertaken in the course of employment and was not reasonably likely to achieve the employees’ objectives. The Court found that the ballot was not genuinely intended to bring about a change in workplace conditions, but rather to pressure the College to reverse its decision.

The Court made a declaration that the proposed industrial action ballot of employees of Al Siraat College Inc T/A Al Siraat College was not protected action within the meaning of the Fair Work Act. The Court also made orders that the Independent Education Union of Australia pay the costs of the proceedings.

Independent Education Union of Australia v Al Siraat College Inc T/A Al Siraat College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established