Independent Education Union of Australia v Edmund Rice Education Australia Flexible Schools Ltd

[2023] FWC 1600

[2023] FWC 1600

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Independent Education Union of Australia
v

Edmund Rice Education Australia Flexible Schools Ltd

(B2023/663)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 3 JULY 2023

Proposed protected action ballot of employees of Edmund Rice Education Australia Flexible Schools Ltd

1. This is an application by the Independent Education Union of Australia (IEU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in relation to certain employees of Edmund Rice Education Australia Flexible Schools Ltd (Edmund Rice Education).

1. This application is being considered by the Commission in conjunction with 6 other PABO applications that also relate to various Catholic Diocesan Schools in Queensland. A further 15 related PABO applications have previously been lodged by the IEU concerning other Catholic Diocesan Schools in Queensland, and these were granted by the Commission on 22 June 2023. I observe that the s.448A conference concerning these parties will shortly be scheduled by the Commission.

1. On 30 June 2023, the Commission was advised that Edmund Rice Education did not object to this application.

1. The proposed agreement in is not a greenfields agreement, or a multi-enterprise agreement that is a cooperative workplace agreement, and this application is permitted.[1] The IEU is proposing an enterprise agreement in consequence of a single interest employer authorisation[2] issued by the Commission on 14 November 2022 under s.248 of the Act as it stood at that time. This authorisation, and the capacity to pursue single enterprise agreements based upon that authority, has been preserved notwithstanding recent amendments to the Act.[3] There is a dispute about the coverage of the agreement, and in particular, the exclusion of some instructional services staff; however, this is itself a matter for bargaining.

1. There has also been a notification time for the proposed agreement, the present enterprise agreements are within 30 days of their nominal expiry dates, and the application and accompanying documentation is in order. The application and proposed order have also been provided by the IEU to Edmund Rice Education and the proposed ballot agent. This meets various requirements[4] for the making of a PABO.

1. The application was supported by a statutory declaration of Paul Giles, Assistant Secretary/Treasurer of the IEU- Queensland and Norther Territory Branch.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing. I have today made the proposed PABO, largely in the terms as sought.

1. The application proposes to utilise a non-eligible protected action ballot agent.

1. Section 444 of the Act now relevantly provides as follows:

“444  Ballot agent and independent advisor

… …

Protected action ballot agent

(1A)The FWC must, in accordance with subsections (1B) to (1D) of this section, decide the person or entity that is to be the protected action ballot agent for the protected action ballot.

(1B)The person or entity must be the person or entity specified in the application for the protected action ballot order as the person or entity the applicant wishes to be the protected action ballot agent, unless:

(a)the person or entity specified in the application does not meet the requirements of subsection (1C) (unless subsection (1D) applies); or

(b)the FWC is satisfied that there are exceptional circumstances that justify another person or entity being the protected action ballot agent.

(1C)     The person or entity must be an eligible protected action ballot agent.

(1D)Subsection (1C) does not apply in relation to a person if the FWC is satisfied that:

(a)there are exceptional circumstances that justify the ballot not being conducted by an eligible protected action ballot agent; and

(b)     the person is a fit and proper person to conduct the ballot; and

(c)     any other requirements prescribed by the regulations are met.

Note:Other than the Australian Electoral Commission, an entity that is not a person cannot be the protected action ballot agent for a protected action ballot.”

1. At the time of making this application, there were 3 eligible protected action ballot agents approved by the Commission[5] beyond the Australian Electoral Commission, which is authorised directly by the Act. The IEU propose that RMK Investments Pty Ltd as Trustee for Kidd Family Trust T/A Australian Election Company (Australian Election Company) be the ballot agent and rely upon the exceptional circumstances contemplated in s.444(1D)(a). The Australian Election Company has agreed to be the ballot agent, and this has been confirmed in evidence that is before the Commission.

1. The operation of these provisions and the context for the assessment of exceptional circumstances has been discussed in a number of decisions.[6]

1. I was satisfied that there were exceptional circumstances that justified the approval of the non-eligible ballot agent proposed in this matter. Those circumstances included the nature of the workforce, the fact that multiple associated ballots are being conducted in the same period relating to the same proposed enterprise agreement, and the efficiency and effectiveness of electronic voting by the same ballot agent in that particular context.

1. The proposed protected action ballot agent must also meet the requirements of s.444(1D)((b) and (c) of the Act. This involves an assessment of whether the proposed protected action ballot agent is a fit and proper person to conduct the ballot and whether they also meet the requirements established by the regulations, and in particular, reg 3.11.

1. The Commission has found on multiple occasions that the Australian Election Company is a fit and proper person to act as a ballot agent.[7] The material[8] before the Commission also confirms that this remains the case and that the Australian Election Company complies with all of these requirements. This material included details about the nature of the information and other systems to be used for the ballot, compliance with the Privacy Act and related principles, and steps that will be taken to ensure that the ballot is conducted fairly, democratically, and expeditiously by fit and proper individuals.

1. I have approved the Australian Election Company to act as the protected action ballot agent in this matter under s.444(1D) of the Act.

1. No independent advisor for the ballot was proposed or appointed.

1. For the purposes of s.443(3)(c) and s.448A(2) of the Act, I have set the ballot period at 18 working days by reference to the date of effect of the PABO (3 July 2023). This reflects, in practice, the ballot period in the proposed orders. That is, the (maximum) period is such that ballot agent may conduct the ballot to conclude on 27 July 2023 as proposed.

1. On the basis of the material before me, I was satisfied that the IEU has been, and is, genuinely trying to reach an agreement with Edmund Rice Education. This meets the requirements of s.443(1)(b) of the Act. I was also satisfied that all of the other statutory requirements for the issuing of the PABO in this matter were met. Under s.443 of the Act, the Commission was then required to issue the PABO.

1. An order has been separately issued in PR763821.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A conference. This conference will involve all bargaining representatives for the proposed enterprise agreement(s), including those involved in the related PABO matters. To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Act s 437(2).

[2] [2022] FWC 3011.

[3] Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 – schedule 1 Transitional provisions including at s.78A.

[4] Act ss. 437, 438, 440.

[5] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400; TrueVote Pty Ltd [2023] FWC 1446.

[6]  AMWU v Otis Elevator Company Pty Limited T/A Otis Elevator Company [2023] FWC 1337; AMWU v UGL Rail Services Pty Limited [2023] FWC 1365 (AMWU v UGL); CEPU v UGL Rail Services Pty Limited [2023] FWC 1381 (CEPU v UGL); AMOU v Solstad Australia Pty Ltd [2023] FWC 1389.

[7]  Including Australian Education Union v The Secretary to the Department of Education and Training of the State [2021] FWC 5212; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Electricity Networks Corporation T/A Western Power [2021] FWC 1944; CPSU, the Community and Public Sector Union v Commonwealth of Australia (acting through and represented by the Department of Defence [2015] FWC 1700.

[8] Including a Declaration by Mr Wade Hadley – Manager of the Australian Election Company.

Printed by authority of the Commonwealth Government Printer

<PR763822>