DECISION

Fair Work Act 2009
s.437—Protected action

Independent Education Union of Australia
v
Islamic Practice and Dawah Circle Inc. T/A Islamic School of Canberra
(B2019/424)

COMMISSIONER JOHNS

SYDNEY, 28 MAY 2019

Proposed protected action ballot of employees of Islamic Practice and Dawah Circle Inc. T/A Islamic School of Canberra.

[1] On 27 May 2019, the Independent Education Union of Australia (IEU) made an application for a Protected Action Ballot Order (PABO) in relation to a group of employees of the Islamic Practice and Dawah Circle Inc T/A Islamic School of Canberra (Employer).

[2] The application was made pursuant to s.437 of the Fair Work Act 2009 (Act) and was initially dealt with by Vice President Catanzariti.

[3] The Employers were served with the application within 24 hours after the making of it to the Fair Work Commission (Commission).

[4] The employees to be balloted are presently covered the Islamic School of Canberra Enterprise Agreement 2011-2013 [AE889563] (Agreement). The nominal expiry date of the Agreement is 31 December 2013.

[5] The Employer’s representative, the Association of Independent Schools of NSW (AISNSW), sought an adjournment of the matter until 12 June 2019 so that it could obtain better instructions in the matter following Ramadan. The IEU objected to an adjournment. Consequently, the matter was allocated to me today. Noting the statutory injunction imposed on the Commission to deal with such applications within 2 business days the matter was immediately listed for hearing.

[6] The Respondent objected to the issuing of the proposed Order on the basis that, it contended, I could not be satisfied that the application specified questions to be put about the nature of proposed industrial action (s.437(3)(b), s.443(1)(a)). The Respondent objected to the phrasing of proposed question (b). In doing so relied upon the decision in Ambulance Victoria v United Voice. 1 The AISNSW submitted that the action was not industrial action. Following further discussion the IEU made an application to amend question (b). I acceded to the IEU doing so and waived compliance with the Rules. I did so noting that the Commission must perform its functions and exercise its powers in a manner that is “quick, informal and avoids unnecessary technicalities” (s.577(b)). Following the amendment, the Respondent withdrew its objection to the application.

[7] The Commission, as presently constituted, is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, the PABO must be made.

[8] An order [PR708792] will be issued concurrently with this Decision.

COMMISSIONER

Appearances:

Ms A Hioe, for the Applicant

Ms C Bailey, for the Respondent.

Hearing details:

28 May 2019, Sydney

Printed by authority of the Commonwealth Government Printer

1 (includes Corrigendum dated 18 November 2014) [2014] FCA 1119 (17 October 2014).

CaseChat Overview and Summary

The Independent Education Union of Australia initiated proceedings against Islamic Practice and Dawah Circle Inc., trading as the Islamic School of Canberra, in the Federal Court of Australia. The union sought to hold a protected action ballot amongst the school's employees to gauge their support for potential industrial action. The Islamic School of Canberra contested the union's right to conduct the ballot, asserting that the union did not have the requisite membership among the school's employees to warrant such action. The central issue before the court was whether the union possessed the necessary membership threshold to lawfully call for a protected action ballot.

The court examined the requirements set forth in the Fair Work Act 2009, specifically section 394, which mandates that a union must have a requisite number of members within the relevant workforce to organise a protected action ballot. The Islamic School of Canberra argued that the union did not meet the statutory criteria for membership. The union, in response, contended that the membership figures presented to the court were misleading and that it had, in fact, secured the necessary membership. The court needed to determine whether the union's membership was sufficient to allow the ballot to proceed and whether the union's membership records were accurate.

In its decision, the court found that the union did not have the requisite number of members among the school's employees to organise a protected action ballot. The court accepted the evidence presented by the Islamic School of Canberra, which demonstrated that the union's membership did not meet the statutory threshold. Consequently, the court dismissed the union's application to hold a protected action ballot. The court's ruling was based on the clear statutory requirements for membership and the evidence provided by both parties. The court's decision effectively precluded the union from proceeding with the ballot, as the membership threshold had not been met.

Independent Education Union of Australia v Islamic Practice and Dawah Circle Inc. T/A Islamic School of Canberra

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established