Independent Education Union of Australia v Archdiocese of Canberra and Goulburn, Catholic Education Office
[2011] FWA 7150
•18 OCTOBER 2011
[2011] FWA 7150 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Independent Education Union of Australia
v
Archdiocese of Canberra and Goulburn, Catholic Education Office
(B2011/3722)
COMMISSIONER DEEGAN | CANBERRA, 18 OCTOBER 2011 |
Proposed protected action ballot by employees of the Archdiocese of Canberra and Goulburn, Catholic Education Office.
[1] This is an application, filed on 12 October 2011, for a protected action ballot of members of the Independent Education Union of Australia (Union) employed by the Archdiocese of Canberra and Goulburn, Catholic Education Office (Employer) in schools operated by the Catholic Education Office in the Australian Capital Territory. The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).
[2] The matter was initially listed for hearing on Friday, 14 October 2011 but, by agreement between the parties, was relisted for Tuesday, 18 October 2011.
[3] The Union seeks to ballot specified employees of the Employer who are members of the Union, for whom the Union is a bargaining agent, and who would be covered by the proposed enterprise agreement.
[4] The relevant section of the Act, section 443, provides as follows:
443 When FWA must make a protected action ballot order
(1) FWA 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) FWA 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) FWA 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 FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.
(5) If FWA 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.
[5] I am satisfied that the application has been made in accordance with s.437 of the Act.
[6] In support of the application the Union filed an affidavit of Mr Dick Shearman, NSW/ACT Branch Secretary of the Union. Mr Shearman’s affidavit described the negotiations that have been occurring between the parties since May 2011 and the current status of those negotiations. It was Mr Shearman’s evidence that the Union is genuinely trying to reach agreement with the Employer on the terms of a new agreement.
[7] By its submission on the application the Employer took issue with Mr Shearman’s claim that the Union was genuinely trying to reach agreement, however, it did not seek to cross-examine Mr Shearman on the contents of his affidavit or call any evidence to rebut that claim.
[8] For the purposes of s.443(1)(b) of the Act I am satisfied, on the basis of the evidence brought by the Union, that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.
[9] As s.443(1)(a) and (b) have been complied with I must make a protected action ballot order, as sought by the Union. My Order [PR515844] is issued separately.
Appearances:
Ms Carol Matthews and Ms Berna Simpson, for the Independent Education Union.
Ms Natasha O’Donoghue, Catholic Education Office, for the Respondent.
Mr Sean Morrissey, Catholic Commission for Employment Relations, for the Respondent.
Hearing details:
2011.
Canberra:
October, 18.
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