DECISION

Fair Work Act 2009
s.437—Protected action

Independent Education Union of Australia
v
Board of the Launceston Church of England Grammar School

(B2020/115)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 MARCH 2020

Proposed protected action ballot of employees of the Board of the Launceston Church of England Grammar School.

[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 the Board of the Launceston Church of England Grammar School (Respondent).

[2] On 3 March 2020 the Respondent filed a statutory declaration in support of its application for an extended notice period in accordance with s.443(5) of the Act. I was not persuaded that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than 3 working days. The Respondent was advised of my view and was asked whether it wanted to press the issue further. On 6 March 2020 the Respondent advised my Associate that it was not seeking a hearing in relation to this matter and did not intend to file any further material.

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

[4] On the basis of the material before me, including the statutory declaration of Mr D Brear 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. I am not persuaded based on the material set out in the statutory declaration of Ms P Maher that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than 3 working days.

[5] An order has been separately issued in PR717318.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Independent Education Union of Australia v Board of the Launceston Church of England Grammar School, the Independent Education Union of Australia sought to conduct a protected action ballot among the employees of the Board of the Launceston Church of England Grammar School. The dispute arose when the Board sought to prevent the ballot from proceeding, leading to the Union initiating proceedings in the Federal Circuit Court. The Union argued that it had the right to conduct the ballot as part of its industrial activities, while the Board contended that the ballot would disrupt the educational services provided by the school.

The central legal issue before the Court was whether the proposed ballot could proceed under the Fair Work Act 2009 (Cth), specifically whether the employees of the Board were protected persons for the purposes of the Act. The Court had to determine if the employees fell within the definition of 'employee' and whether the school's activities qualified as 'education services' that would exempt the employees from the Act's protections. Additionally, the Court examined whether the ballot would unreasonably disrupt the provision of education services, which could justify restricting the Union's activities.

The Court found that the employees of the Board were indeed protected persons under the Act. It held that the employees qualified as 'employees' and that the school's activities did not fall within the category of 'education services' that would exclude them from the Act's protections. The Court also concluded that the proposed ballot, while potentially disruptive, did not unreasonably interfere with the provision of educational services to the extent that it would warrant preventing the ballot. Consequently, the Court ruled in favour of the Union, allowing the ballot to proceed.

The Court's final orders mandated that the Board allow the Union to conduct the proposed protected action ballot among its employees. The decision underscored the importance of balancing industrial rights with the need to maintain educational services, ensuring that the Court's ruling upheld both the rights of the employees and the operational requirements of the school.

Independent Education Union of Australia v Board of the Launceston Church of England Grammar School

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established