Independent Education Union of Australia v Catholic Church Endowment Society Inc
[2009] FWA 831
•26 OCTOBER 2009
[2009] FWA 831 |
|
DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
v
Catholic Church Endowment Society Inc
(B2009/10882)
The Catholic Diocese of Port Pirie Inc
(B2009/10883)
SENIOR DEPUTY PRESIDENT O'CALLAGHAN | ADELAIDE, 26 OCTOBER 2009 |
Proposed protected action ballot by employees of Catholic Church Endowment Society Inc and The Catholic Diocese of Port Pirie Inc.
[1] On 20 October 2009 the Independent Education Union of Australia (IEU) lodged two separate applications for protected action ballot orders pursuant to section 437 of the Fair Work Act 2009 (the Act). The first application named Catholic Church Endowment Society Inc (hereinafter referred to as CCES) as the respondent employer and was allocated the matter number B2009/10882. The second application named The Catholic Diocese of Port Pirie Inc (hereinafter referred to as CDPP) as the respondent employer and was allocated the matter number B2009/10883.For the purposes of this decision, the two respondent employers are collectively referred to as ‘the respondents’.
[2] Consistent with sections 441 and 442 of the Act, both matters were the subject of a hearing on 23 October 2009. At this hearing, Mr Seidel and Ms Edwards represented the IEU and Ms Webb, of counsel represented the two respondents.
[3] In considering the applications I have taken into account the significant amount of written material provided to me, together with the evidence of Mr Bernardi, an organiser with the IEU who has been involved in negotiations toward an agreement to apply to employees of the respondents, and the evidence of Dr Thomas, the Assistant Director Catholic Education SA who has the delegated authority for the conduct of enterprise bargaining negotiations on behalf of all Catholic school employers in South Australia.
Background
[4] On 6 March 2009 the South Australian Catholic Schools Enterprise Agreement 2006, (hereinafter referred to as the ‘2006 Agreement’) a preserved State collective agreement achieved its nominal expiry date. The 2006 Agreement had application to 17 named Catholic school employers. This list of 17 named Catholic school employers includes the both the CCES and the CDPP. The CCES operates 73 schools in the Adelaide metropolitan area. The SDPP operates a number of schools in the northern part of South Australia. The list of 17 named Catholic school employers bound by the 2006 Agreement includes a number of primarily Order-run Catholic Colleges. Catholic Education SA broadly speaking, covers all of the named Catholic school employers bound by the 2006 Agreement. All of these employers have historically negotiated through the agency of Catholic Education SA (Catholic Education).
[5] The IEU served a log of claims on Catholic Education in September 2008 and negotiations between the parties occurred from November 2008 to July 2009. These discussions occurred on the basis that both parties proposed to vary and extend the 2006 Agreement.
[6] I note that these negotiations occurred in the context of difficulties in applying the traditional practice of recognising wage outcomes achieved in the South Australian Government education sector as those negotiations have not achieved agreement and wage rates for Government School teachers are matters which have proceeded to arbitration in the South Australian Industrial Relations Commission.
[7] In July 2009 the IEU indicated that it no longer sought to pursue a variation and extension of the 2006 Agreement but instead sought a single interest agreement under the Act. Catholic Education subsequently considered this proposal in concert with its constituents before seeking a Ministerial Declaration for a single interest agreement pursuant to section 247 of the Act. Despite repeated requests from the IEU, Catholic Education declined to continue formal negotiations with the IEU until the issue of the Ministerial Declaration had been resolved. This position was adopted on the basis that Catholic Education asserted that without some certainty of its constituents standing, it was unable to clarify the position of bargaining representatives, issue Notices of Representational rights, or have any certainty about the type of agreement to be pursued.
[8] On 18 September 2009 Catholic Education received advice on behalf of the Minister, to the effect that, whilst the application generally met the requirements of section 247, concern over the constitutional corporation status of the order-run schools, meant that the proposal would be reviewed after the proposed referral of South Australian state workplace relations powers in January 2010. Catholic Education is continuing to pursue this declaration.
[9] On 28 September 2009 Catholic Education proposed the negotiation of a sector wide agreement in the South Australian jurisdiction.
[10] On 7 October 2009 the IEU wrote to Catholic Education advising that it would pursue separate agreements for the order-run schools in the South Australian state jurisdiction. This advice implied that agreements under the Fair Work Act were still being pursued with respect to the CCES and the CDPP.
[11] This position was confirmed on 19 October 2009 when the IEU wrote separately to CCES and CDPP advising that it sought to negotiate separate agreements with each of the respondents The letters to the CCES and CDPP included claims which broadly reflected those discussed earlier on a system wide basis with the addition of provisions reflecting the specific collective agreement requirements set out in the Act. The IEU sought meetings with the CCES and the CDPP within seven days. However the IEU lodged this application for a protected action ballot on the following day.
[12] The IEU position is that the CCES and the CDPP have been involved in negotiations over issues consistent with the September 2008 claims since that time. Further, that the form of the agreement sought and the issue of whether other, individually named schools were included in the negotiations did not affect the extent to which it was genuinely seeking to reach an agreement. Finally, the IEU advised that the timing of this application was influenced by its desire to allow its members to consider taking industrial action before the conclusion of the 2009 school year.
[13] Catholic Education, on behalf of the respondents, opposed the application on the basis that it asserted the IEU could not be said to be genuinely seeking an agreement in that it had adopted a changed position since July 2009 in a form which had fundamentally changed the structure of the negotiations and the capacity of Catholic Education to participate until the issue of the Single Interest Ministerial Declaration was resolved. Further, Catholic Education argued that, since the separate agreement proposal had only been articulated on 19 October 2009 there was inadequate clarity about the terms of the two agreements being sought.
Findings
[14] Section 443 relevantly states:
“(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).
[15] This provision makes it clear that if the two prerequisites in section 443(1) are met, Fair Work Australia is required to make an order for a protected action ballot.
[16] There is no argument about the extent to which the applications were properly made pursuant to section 437.
[17] The term "genuinely trying to reach agreement" was considered by a recent Full Bench of Fair Work Australia in Total Marine Services Pty Ltd v Maritime Union of Australia 1 in the following terms:
“[30] The requirement that an applicant for a ballot order genuinely try to reach an agreement and be continuing to do so at the time an application for a ballot order is made was a requirement in the Workplace Relations Act 1996. The wording of the relevant section has been altered because of the removal of a process of establishing a bargaining period during which protected action may be taken. The concept of genuinely trying to reach an agreement was dealt with in other parts of the Workplace Relations Act 1996, specifically in relation to the grounds for terminating a bargaining period.
[31] In our view the concept of genuinely trying to reach an agreement involves a finding of fact applied by reference to the circumstances of the particular negotiations. 2 It is not useful to formulate any alternative test or criteria for applying the statutory test because it is the words of s 443 which must be applied. In the course of examining all of the circumstances it may be relevant to consider related matters but ultimately the test in s 443 must be applied.
[32] We agree that it is not appropriate or possible to establish rigid rules for the required point of negotiations that must be reached. All the relevant circumstances must be assessed to establish whether the applicant has met the test or not. This will frequently involve considering the extent of progress in negotiations and the steps taken in order to try and reach an agreement. At the very least one would normally expect the applicant to be able to demonstrate that it has clearly articulated the major items it is seeking for inclusion in the agreement, and to have provided a considered response to any demands made by the other side. Premature applications, where sufficient steps have not been taken to satisfy the test that the applicant has genuinely tried to reach an agreement, cannot be granted.”
[18] I have considered the circumstances of this matter in this context.
[19] The IEU’s actions in July 2009, in seeking an agreement under the Act and the consequent endeavours to achieve a single interest Ministerial Declaration, does not diminish the extent to which the IEU is genuinely trying to reach an agreement. The Act introduced substantial changes which the IEU were entitled and substantially obligated to have regard to. Subsequent to July 2009, the IEU has consistently sought to recommence negotiations dealing with the content of any agreement. Further, the evidence is that committees dealing with specific negotiating issues have continued to meet.
[20] The implementation of the Fair Work Act on 1 July 2009 and the practical difficulties in achieving a single interest employer declaration must impact on the bargaining rights of employees to be covered under any agreement. This impact is clearly the most marked for employees of those entities where there is a question about whether the employer is a national system employer for the purposes of section 170 of the Act. However, this issue does not directly impact on the representative rights of employees of the CCES or the CDPP. The reticence of Catholic Education to generate Notices of Representational Rights until the status of the employing entities was determined is understandable. It is clear that Catholic Education has consistently operated on the premise that it will reach a sector wide agreement in the manner in which it has done in the past. On the material before me, such a sector wide agreement is integral to the practical operation of the Catholic education system.
[21] Notwithstanding this, the obligation to generate Notices of Representational Rights is directed at the employer, and a genuine desire on the part of the IEU to reach an agreement applicable to its members does not require that the Notices of Representational Rights are issued before protected industrial action can be countenanced.
[22] Consequently, the actions of the IEU in seeking a Federal system agreement with the consequent requirement for a single interest employer declaration cannot be taken to establish that the IEU has not been genuinely trying to reach an agreement.
[23] Had the actual claims set out in the IEU correspondence of 19 October 2009 been made on the CCES and the CDPP for the first time, it would be impossible to conclude that the IEU was genuinely trying to reach an agreement as meetings or negotiations to explore those matters have not occurred before these applications were made. However, the CCES and the CDPP have been represented by Catholic Education over the entire period from September 2008 to the present time and have presumably been aware of these claims. Again, the actual claims put does not demonstrate that the IEU is doing anything other than genuinely trying to reach an agreement.
[24] Of substantial significance is the fact in early October and confirmed on 19 October 2009, the IEU sought to depart from the traditional system wide approach which has underpinned the negotiations to date. What the IEU has proposed is potentially an entirely different form of agreement making with South Australian Catholic schools.
[25] The IEU approach may involve the pursuit of identical agreements. Whilst this may give rise to questions about pattern bargaining, it does not necessarily preclude an ongoing genuine attempt to reach agreements. Alternatively, the agreements sought in this case with the CCES and the CDPP may vary, which would appear to have substantial implications for the way in which Catholic schools are managed and for funding and staffing arrangements. The potential for diverse agreements must mean that Catholic Education should be given some time to confer with the constituents affected and, consistent with the 19 October 2009 correspondence, discuss these options with the IEU.
[26] In its 19 October 2009 correspondence the IEU anticipated a negative response from both the CCES and the CDPP. This may be an accurate prediction but I consider that there is an obligation on the parties to at least attempt negotiations on the basis proposed. The absence of a reasonable opportunity to do this before the ballot applications were lodged means that I am unable to conclude that the negotiations have reached a point where the requirements of section 443(1)(b) have been met. In terms akin to the conclusion reached by the Full Bench in Total Marine Services, it is absolutely clear that the IEU has been genuine in the actions it has taken, but the 7th and 19th of October 2009 requests necessitate a proper opportunity be given to the CCES and the CDPP to develop and convey a response before I can be satisfied that the requirements of section 443(1)(b) have been met.
[27] Accordingly, the application must be refused at this time.
[28] One other observation appears pertinent. My decision to refuse these applications ought not be read as an indication that a similar application lodged in the near future will also be refused. The circumstances which led to the refusal of these applications could, depending on the actions of the parties, be relatively simply rectified. Should such a further application be made, it may be appropriate for these proceedings to be taken into account.
SENIOR DEPUTY PRESIDENT
Appearances:
G Seidel and A Edwards on behalf of the Independent Education Union of Australia.
Y Webb counsel for Catholic Education SA.
Hearing details:
2009.
Adelaide:
October 23.
1 [2009] FWAFB 368
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