Independent Education Union of Australia v All Hallows' School Limited T/A All Hallows' School and others
[2016] FWCFB 262
•14 JANUARY 2016
[2016] FWCFB 262
DECISION
Fair Work Act 2009 s.604 - Appeal of decisions Independent Education Union of Australia v All Hallows' School Limited T/A All Hallows' School and others (C2016/2084) VICE PRESIDENT WATSON DEPUTY PRESIDENT SAMS MELBOURNE, 14 JANUARY 2016 DEPUTY PRESIDENT ASBURY Appeal against decision on transcript of Commissioner Booth at Brisbane on 23 December
2015 in matter numbers B2015/1711 - B2015/1743 – Protected Action Ballot Order –
questions to be put in ballot – whether proposed action is industrial action – Fair Work Act
2009, ss.437 and 604.
Introduction
[1] This decision concerns an application by the Independent Education Union of
Australia (IEUA) for permission to appeal and an appeal under s.604 of the Fair Work Act
2009 (the Act) against the decision on transcript of Commissioner Booth handed down on
23 December 2015. The decision of the Commissioner concerned 279 applications for
protected action ballot orders in similar formats in relation to a large number of independent
schools (the schools). One of the common issues considered by the Commissioner concerned
the wording of one of the questions to be put to the employees who are to be balloted.
[2] At the hearing of the appeal on 13 January 2016 Mr A Herbert of counsel appeared on
behalf of the IEUA, with Mr J Spriggs and Mr E Burke. Mr C Murdoch of counsel appeared
on behalf of the schools, with Ms S Betzien.
Background
[3] The IEUA originally filed 279 applications under s.437 of the Act seeking protected
industrial action ballot orders with respect to the employees of the schools.
[4] The IEUA sought the following questions to be put in the ballot:
“Do you, for the purpose of advancing claims in the negotiation of an Enterprise
Agreement between [school] and its employees, represented by the Union, authorise
industrial action against [school] which may involve you and/or other employees
engaging in any or all of the following forms of action:
[2016] FWCFB 262
(i) an unlimited number of stoppages of one day's duration which may be taken
separately, concurrently or consecutively; and
(ii) employees will delay responding to and/or actioning emails (except for emails
which deal with: a genuine health or safety matter for employees or students; or child
protection matters) for a period of time - such period will not exceed 30 days, and will
include an ‘out of office’ message on their email referring to protected industrial
action as the reason for the delay in responding; and
(iii) employees will ban, for an indefinite period, any duties during their scheduled
'non contact time' (non-contact time being any time other than "contact time" as
defined by S5.2.1 of the existing Agreement in the case of secondary schools and
"class contact time" as defined by S5.3 of the existing Agreement in the case of
primary schools) other than preparation directly related to the teaching of students and
the assessment or marking of student work; and
(iv) employees will not attend, for an indefinite period, staff meetings (staff meetings
being any meeting of three or more staff called or scheduled by the employer for the
purpose of directing or co-ordinating the work of staff or providing professional
development; the term staff meetings does not include meetings with parents nor does
it include school worship activities); and
YES [ ] NO [ ]” [5] The Commissioner issued a decision on transcript at the completion of the
proceedings. The Commissioner made the protected action ballot order but modified
paragraph (ii) of the question proposed in the application by omitting the words “and will
include an ‘out of office’ message on their email referring to protected industrial action as the
reason for the delay in responding.” The Commissioner said:
“I turn now to the agreed evidence of the parties, that there is a recognition that an
electronic communication from the employees to students, parents and colleagues is
part of the work of a teacher occurring within their hours of duty. That is, responding
to emails is work performed by an employee. The action they are taking is non
responding to emails. However the out of office message, such a message is not work
performed by an employee.
Section 19(1)(a) requires work performed in a manner that is different, a different
practice is adopted, however that practice must relate to the work of an employee. The
work of an employee is answering emails. The proposed action that results in the
restriction, limitation or delay in the performance of the duties is the non-responding to
the emails. The out of office message is an explanation of that non response to the
email. It is therefore not industrial action.
As I have indicated, the requirements for section 437 in the limited order as described
earlier have been met and the order must issue. The order will issue with the three
questions as sought by the applicant save for the question 2 which will be as follows:
Employees will delay responding to or actioning emails except for emails
which deal with a genuine health and safety matter for employees or students
[2016] FWCFB 262
or child protection matters for a period of time. Such period of time will not
exceed 30 days”
Grounds of Appeal
[6] The IEUA contends that the Commissioner acted on a wrong principle and/or
misunderstood the facts in holding that the second part of paragraph (ii) is not industrial
action and therefore cannot be proposed action for the purpose of the ballot. The appeal
requires us to consider the correctness of the Commissioner’s determination.
[7] Section 19 of the Act relevantly provides:
“19 Meaning of industrial action
(1) Industrial action means action of any of the following kinds:
(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 an employee;
…”
[8] In our view it is necessary firstly to construe paragraph (ii) and identify the conduct
that is proposed to be taken. Secondly it is necessary to determine whether the conduct falls
within the definition of industrial action in s.19 of the Act. It is of course necessary to
consider the wording of the question proposed to be put and not any alternative formulation.
[9] The IEUA contends that the two elements of paragraph (ii) involve one and the same
action and the notion of sending a non-responsive email response instead of a responsive
email response is a ban, limitation and performance of work in a manner different to that in
which it is customarily performed and results in limitation and delay in the performance of
work.
[10] The schools contend that paragraph (ii) involves two actions. The first (the delay in
responding) is clearly industrial action but the second (sending an out of office email) does
not fall within either s.19(1)(a) or (b) of the Act.
[11] The Commissioner construed paragraph (ii) as incorporating two actions. We agree
with that construction. The first action is a delay in performing work and is clearly a ban and
limitation on the performance of work. The second action involves a form of communication
to the sender of an email, which may or may not be automatic. In our view, as far as the
performance of work is concerned, the out of office email does not involve an additional ban
or limitation over and above the first action. The second action would appear to involve the
performance of work in a manner different to the manner in which it is customarily performed
because it is unauthorised, not approved and inconsistent with normal practice. However the
result of the second action is not a restriction or limitation or delay in the performance of the
[2016] FWCFB 262work. Once the first action is taken the second action is more accurately described as a
communication of the first action to the person or persons affected by the taking of the first
action - the second action is not itself industrial action. The communication does not involve
any additional restriction, limitation or delay. In the various cases referred to by the parties the
mere communication of industrial action has not been held to constitute industrial action.
[12] In our view therefore the Commissioner was correct in determining that paragraph (ii)
sought to authorise conduct that was not industrial action and correctly decided to excise that
conduct from the question to be put to employees in the ballot.
Conclusion
[13] As the appeal raises issues of construction of the Act and important questions as to the
nature of industrial action we consider that it is in the public interest to grant permission to
appeal.
[14] Given our conclusion that the Commissioner correctly excised action that did not fall
within the definition of industrial action and could not be protected industrial action we
dismiss the appeal.
| VICE PRESIDENT |
| Appearances: |
| Mr A Herbert of counsel, with Mr J Spriggs and Mr E Burke on behalf of the IEUA. |
| Mr C Murdoch of counsel, with Ms S Betzien on behalf of the schools. |
| Hearing details: |
| 2016. |
| Brisbane. |
| 13 January. |
| Final written submissions: |
| IEUA on 13 January 2016. |
| The schools on 13 January 2016. |
| Printed by authority of the Commonwealth Government Printer |
| <Price code A, PR576095> |
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