Independent Education Union of Australia v Ipswich Girls’ Grammar School T/A Ipswich Girls’ Grammar School Including Ipswich Junior Grammar School
[2024] FWC 758
•22 MARCH 2024
| [2024] FWC 758 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Independent Education Union of Australia
v
Ipswich Girls’ Grammar School T/A Ipswich Girls’ Grammar School Including Ipswich Junior Grammar School
(B2024/241)
| DEPUTY PRESIDENT WRIGHT | SYDNEY, 22 MARCH 2024 |
Proposed protected action ballot of employees of Ipswich Girls Grammar School
This is an application by the Independent Education Union of Australia (IEU) made under s 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Ipswich Girls’ Grammar School (the School).
On 20 March 2024, the Commission was advised that the School does not object to the application but objects to several of the questions raised in the proposed action. I therefore listed the matter for hearing on 22 March 2024 in relation to the ballot questions.
Ballot Questions
The School objected to the following questions in the application:
Do you, for the purpose of advancing claims in the negotiation of an Enterprise Agreement between the Ipswich Girls’ Grammar School including Ipswich Junior Grammar School and its employees, represented by the Union, authorise industrial action against Ipswich Girls’ Grammar School including Ipswich Junior Grammar School which may involve you and/or other employees engaging in any or all of the following forms of action, separately, concurrently and/or consecutively:
Question 2
an unlimited number of indefinite bans on any duties or activities (including discussions with students) during their scheduled meal breaks; and
Question 3
an unlimited number of indefinite bans on the working, or taking, of supervision or cover periods, howsoever described
Question 4
an unlimited number of indefinite bans on playground or transport supervision, or supervision of any other designated duty area; and
Question 6
a ban on all communications, by email or telephone or any other electronic forms of communication, outside of 8:30am to 3:30pm, Monday to Friday; and
Question 7
making oral or written statements, while working, explaining why union members are taking protected industrial action, in communications with any person while on a school site
Submissions
The School
In relation to questions 2, 3 and 4, the School submitted they were ‘self-contradictory’ in that they propose an unlimited number of indefinite bans, and are not capable of being answered with a 'yes' or 'no'. The School also submitted that ‘unlimited’ means ‘not restricted in terms of number, quantity or extent’ whereas ‘indefinite’ means ‘lasting for an unknown or unstated length of time’. An indefinite ban is limited in its operation in that it either applies or it does not. The proposed questions are therefore nonsensical.
In relation to questions 6 and 7, the School submitted that these do not constitute industrial action as defined in s 19 of the Act. In relation to question 6, the School submitted that it does not require its employees to undertake communications within the time period specified by the question, and it provides its Digital Communication Policy in support of that submission. In relation to question 7, the School submitted that while it may propose the performance of work by an employee in a manner different from the way it is customarily performed, s 19(1)(a) requires that the result of the changed work performance is a restriction or limitation on, or a delay in, the performance of the work. The question does not identify that any restriction, limitation or delay is to occur.
The IEU
The IEU submitted that it is the intention of the questions 2, 3 and 4 not to limit members in the number of indefinite bans they could access. For example, action may commence with a ban on one activity but may be expanded through proper notice to other activities at a later date. It is also the intention to allow members to be able access an indefinite ban that had ceased for some reason, for example to try to progress matters at the bargaining table and then re-enliven the ban if such negotiations were unsuccessful. The application of these terms is consistent with definitions provided by the School in that it will allow an ‘unlimited’ number of ‘indefinite’ bans that may be halted at some stage for a variety of reasons.
The IEU submitted that Question 6 is imposing a ban or restriction on the performance of work in line with s 19(1)(b) of the Act. The Policy provided by the School does not support the proposition that failing to responding to telephone or email communications outside of 8:30am – 3:30pm cannot be seen to be industrial action under s 19 of the Act. The Policy is limited to Digital Communication and does not refer to communication by telephone. Further, the Policy attempts to grant a ‘right to disconnect’, outside of ‘traditional work hours’ which are undefined.
The current round of bargaining is for a replacement agreement for the Ipswich Girls’ Grammar School including Ipswich Junior Grammar School Collective Agreement 2021 (the Agreement) which has coverage of employees including Teaching and Non-Teaching staff. Schedule 2 of the Agreement covers conditions for Non-Teaching staff. Clause 4.1 of this Schedule sets out the ordinary hours for these staff which range from 6:00am to 7:00pm Monday to Friday and various hours on weekends for some classifications. Schedule 1 of the Agreement provides the specific conditions for teaching staff and Clause 10.1 of the Schedule establishes teaching staff can be required to work between 9:00am and 5:00pm and up to one third of hours outside of this time. It is clear from the current Agreement that ‘traditional work hours’ as considered in the Digital Communication Policy will be outside of the timeframes of 8:30am – 3:30pm as considered by this question and hence even with the introduction of the Policy this action can be determined to be industrial action consistent with the Act.
Question 7 proposes to make the performance of work by an employee in a manner different from the way it is customarily performed in line with s 19(1)(a). The IEU submits that making statements regarding the taking of industrial action is performance of work by an employee in a different way.
Consideration
Do Questions 2, 3 and 4 describe the industrial action in such a way that employees are capable of responding to them?
In John Holland Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union,[1] the Full Bench said:
Moving now to the construction of s.437 itself, seen in its statutory context, all that the section requires is that the questions should describe the industrial action in such a way that employees are capable of responding to them. If the questions are ambiguous or lack clarity there may be consequences for the bargaining representative and the employees if reliance is placed on the result of the ballot in taking industrial action. If the question or questions give rise to ambiguity, the conclusion may be reached that the industrial action specified in a notice under s.414 was not authorised by the ballot and that the action is not protected for the purposes of s.409(2). It is true that ambiguity or lack of clarity in the description of the industrial action is undesirable, but these are matters more appropriate for consideration under other provisions. It follows that in most cases the drafting of the questions will be a matter for the applicant.[2]
In National Tertiary Education Industry Union v Curtin University,[3] the Full Bench said:
In summary, therefore, an application for a protected action ballot order will comply with the requirement in 437(3)(b), and thus will have been “made under section 437” for the purpose of s 443(1)(a), if it specifies a question or questions, capable of being answered “yes” or “no” by the employees participating in the ballot, which propose(s) action of an identified character, kind or sort capable of constituting industrial action within the meaning of s 19(1). A question which meets these requirements can be expressed and understood in ordinary industrial English, and there is no requirement for legalism, technicality or pedantry in the drafting or analysis of such questions. In our view, the proposition that, beyond these requirements, the questions must be interrogated to identify ambiguity in aid of enabling “informed consent” goes beyond the text of the provision and constitutes a gloss on the statute. The concept of “informed consent” is inapposite to a protected action ballot since, unlike a vote to approve an enterprise agreement, there is no requirement for genuine agreement and those voting are not bound by the result (in the sense there is no requirement for any employee to actually take industrial action which has been authorised by a ballot and for which a s 414(1) notice has been issued). We therefore affirm that paragraph [19] of the decision in John Holland states the correct approach to the construction and application of s 437(3)(b). The statements of principle in FreshExchange are not consistent with that approach and should not be followed.[4]
The substance of the School’s submission is that the expression ‘an unlimited number of indefinite bans’ in Questions 2, 3 and 4 is internally inconsistent. I do not accept that this is the case. Question 2 refers to ‘bans on any duties or activities (including discussions with students) during their scheduled meal breaks.’ The reference to duties or activities in the plural contemplates that the IEU could notify bans in relation to different activities authorised by question 2. For example, the IEU could notify an indefinite ban on discussions with students during scheduled meal breaks followed by an indefinite ban on marking assignments during scheduled meal breaks. Similarly, question 3 could authorise an indefinite ban on working cover periods on Mondays followed by a separately notified indefinite ban on working cover periods on Tuesdays. Further, question 4 could authorise an indefinite ban on playground supervision followed by a separately notified indefinite ban on transport supervision.
Having regard to the submissions of the parties and the material before me, I find that the nature of the proposed industrial action is clearly articulated in Questions 2, 3 and 4 and that there is nothing unclear or ambiguous in any of these questions.
There is no requirement that the questions are specific about the precise form of the industrial action but rather that the nature of the proposed action is described in a manner that employees are able to respond to. I find that Questions 2, 3 and 4 meet these requirements.
Is the proposed action in Questions 6 and 7 industrial action?
Section 19 of the FW Act 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;
(c) a failure or refusal by employees to attend for work or a failure or refusal to perform any work at all by employees who attend for work;
(d) the lockout of employees from their employment by the employer of the employees.
Note: In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.
(2) However, industrial action does not include the following:
(a) action by employees that is authorised or agreed to by the employer of the employees;
(b) action by an employer that is authorised or agreed to by, or on behalf of, employees of the employer;
(c) action by an employee if:
(i) the action was based on a reasonable concern of the employee about an imminent risk to his or her health or safety; and
(ii) the employee did not unreasonably fail to comply with a direction of his or her employer to perform other available work, whether at the same or another workplace, that was safe and appropriate for the employee to perform.
(3) An employer locks out employees from their employment if the employer prevents the employees from performing work under their contracts of employment without terminating those contracts.
Note: In this section, employee and employer have their ordinary meanings (see section 11).
In Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[5] the Full Bench said:
The question whether action described in an application for a protected action ballot order is capable of being properly described as industrial action within the meaning of s.19 of the FW Act is answered primarily by construing the words used in any proposed question, ascertaining the nature of the action described by the proposed question and determining whether that action (having regard to the work performed by employees who are to be balloted) is capable of falling within the exhaustive statutory definition of industrial action.
In National Tertiary Education Industry Union v Curtin University,[6] the Full Bench said:
[50] Section 437(3)(b) also requires that the question(s) must include specification of “the nature of the industrial action”. In context, this is to be read as meaning that the “the nature of the industrial action” must be the subject of the question - that is, it must be the matter for which a “yes” or “no” answer is sought. The word “nature” is one of high generality, and in context refers to the “character, kind or sort” of the industrial action. The proposed action specified in the question must be something that is capable of constituting “industrial action” within the meaning of the definition of that expression in s 19(1) of the FW Act. However, it is not necessary that the specified action constitute industrial action in all conceivable circumstances, for the reasons stated by the Federal Court (Tracey J) in Ambulance Victoria v United Voice:
“Fair Work Australia and its successor have, understandably, been reluctant, when dealing with applications made under s 437 of the Act, to find that proposed action can never constitute industrial action within the meaning of s 19. The terms in which the proposed action is described for the purposes of the ballot may lack legal precision and, more significantly for present purposes, may or may not constitute industrial action depending on the manner in which the action is performed. It will often be difficult for the Fair Work Commission to anticipate, at the time it makes an order under s 437, the context and manner in which union members might choose to take the proposed action. Once a ballot has been conducted and the action is imminent or has occurred greater clarity will often be present.”
(underlining added)
[51] The above passage points to the need to distinguish between what must be specified pursuant to s 437(3)(b) in an application for a protected action ballot order and what must be specified in a notice of employee claim action under s 414(1). In respect of the latter, s 414(6) requires that the notice “specify the nature of the action and the day on which it will start”.As stated in Prosegur (2) albeit by reference to s 443(3)(d) rather than s 437(3)(b):
“[38] … Sections 443(3)(d) and s 414(6) use different language and are concerned with different subject matters. The former provision requires specification of the nature of the ‘proposed industrial action’ in a question in a protected action ballot. It is thus concerned with the identification of categories of industrial action that might be taken in the future, with the statutory purpose being for employees to be able to understand the type of industrial action that they are being asked to authorise. By contrast, s 414(6) requires specification of the nature of ‘the action’ - that is, identification of industrial action which employees are actually going to undertake. In that circumstance, the precise form of the industrial action to be taken will be known to the bargaining representative. The provision’s purpose is to allow the employer an opportunity to take defensive measures in response to the industrial action. In that context, a greater degree of particularity may be required than under s 443(3)(d).” (citations omitted).[7]
In relation to Question 6, the School submits that a ban on all communications, by email or telephone or any other electronic forms of communication, outside of 8:30am to 3:30pm from Monday to Friday, is not industrial action as employees are not required to perform work before 8:30am and after 3:30pm. During the hearing, Mr Cooper, appearing for the School, did not dispute that teachers may respond to queries from parents before 8:30am and after 3:30pm but claimed that this was undertaken on a voluntary basis. Mr Cooper relied on a Policy which provides that staff have the option of making a statement to support the right of parties to disconnect outside of school hours. The fact that staff may have a right to disconnect and are not obliged to take calls from parents outside of school hours does not mean that when staff respond to queries from parents during these times they are not performing work. Clause 10.1.1 of the Agreement contemplates that staff can arrange their work outside of school hours provided that not more than one third of their hours are performed before 9:00am and after 5:00pm. For these reasons I do not accept that work is not performed before 8:30am and after 3:30pm. In the circumstances, I find that a ban on all communications, by email or telephone or any other electronic forms of communication, outside of 8:30am to 3:30pm is a ban, limitation or restriction on the performance of work by an employee and as such falls within the definition of industrial action in s 19(b).
In relation to Question 7, the School submitted that action involving staff making oral or written statements, while working, explaining why union members are taking protected industrial action, in communications with any person while on a school site does not identify that any restriction, limitation or delay is to occur. I do not accept that this is the case. If staff are spending any amount of time making oral or written statements while working, this will reduce the amount of time available for work and necessarily delay the completion of this work. For example, if a staff member spends five minutes talking about industrial action at a staff meeting which is scheduled for a thirty minute period, this is likely to result in the meeting either taking five minutes longer, or some items scheduled for discussion being postponed to a future meeting. For this reason, I believe that the action in Question 7 involves 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 delay in, the performance of the work. As such this action within the definition of industrial action in s 19(c).
In all of the circumstances, I find that the proposed action in Questions 2, 3, 4, 6 and 7 constitutes industrial action and that employees are capable of responding to the questions, and that therefore there is no basis for me to exclude the questions from the protected action ballot order sought by the IEU.
On the basis of the material before me, including the declaration of Mr Andrew Elphinstone, IEU Organiser, setting out the steps taken by the IEU in bargaining with the School and that it has been, and is, genuinely trying to reach agreement with the School, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s 443(1) of the Act have been met.
The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s 443(3)(c) of the Act, I have determined that the date by which voting is to close is 7 May 2024, as sought in the application. This also establishes the ballot period for the purpose of s 448A(2) of the Act.
An Order has been separately issued in PR772675.
This matter will shortly be listed for a compulsory conciliation conference pursuant to s 448A of the FW Act and an Order issued requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.
DEPUTY PRESIDENT
[1] [2010] FWAFB 526.
[2] Ibid, [19].
[3] [2022] FWCFB 204.
[4] Ibid, [53].
[5] [2017] FWCFB 4740.
[6] [2022] FWCFB 204.
[7] Ibid, [50]-[51].
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