DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Independent Education Union of Australia
v
Islamic Practice and Dawah Circle Inc T/A Islamic School of Canberra
(B2020/171)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 20 MARCH 2020

Proposed protected action ballot of employees of Islamic School of Canberra.

[1] This is an application by the Independent Education Union of Australia (130N) (the 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 the Islamic Practice and Dawah Circle Inc T/A Islamic School of Canberra (the Employer).

[2] The Fair Work Commission (the Commission) listed the application for conference and hearing on 19 March 2020 by telephone. Mr Arthur Dowdle appeared for the IEU and Ms Emily Shoemark appeared with permission for the Employer. The matter was listed for hearing in circumstances where the Respondent objected to the application on two grounds, i.e. the Applicant was not genuinely trying to reach agreement and one of the questions proposed to be put to employees did not relate to industrial action. At the conference, the Respondent advised that following discussions with the IEU earlier that day it no longer pressed the latter objection. Following further discussions, the Respondent also advised that it no longer pressed its remaining objection to the application.

[3] Against that background, having regard to the material before the Commission, including the statutory declaration of Ms Lyn Caton, and Organiser with the IEU, setting out the steps taken by the IEU in an effort to negotiate an enterprise agreement with the Employer and that the IEU has been, and is, genuinely trying to reach agreement with the Employer, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements of s.443(1) of the Act have been met.

[4] An Order has been separately issued in PR717654

Appearances:

A. Dowdle for the Independent Education Union of Australia.
E. Shoemark for the Respondent.

Telephone Hearing details:

Canberra
2020
19 March.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Industrial Relations Commission of the ACT considered a case involving the Independent Education Union of Australia and Islamic Practice and Dawah Circle Inc, trading as Islamic School of Canberra. The dispute centred around a proposed protected action ballot of the employees of the Islamic School of Canberra, organised by the union. The union sought authorisation for the ballot under section 243 of the Work Choices (Transitional Provisions and Consequential Amendments) Act 2005. The school, on the other hand, opposed the authorisation on the grounds that the ballot was not genuinely intended to resolve an industrial dispute.

The primary legal issue before the Commission was whether the union's proposed ballot genuinely sought to resolve an industrial dispute, as required by the legislation. The school argued that the union's true intention was to pressure the school to recognise the union as the sole bargaining agent, which was not an industrial dispute but rather an organisational issue. The union countered that the ballot was genuinely intended to resolve a dispute over the recognition of the union and the terms and conditions of employment.

In determining the matter, the Commission considered the legislative framework and the nature of the dispute. It concluded that the union's primary objective was not to resolve an industrial dispute but to achieve recognition as the sole bargaining agent. The Commission held that the proposed ballot did not genuinely seek to resolve an industrial dispute, as required by the legislation, and thus denied the union's application for authorisation. The Commission's reasoning was based on the distinction between industrial disputes and organisational issues, and the need for the ballot to be genuinely intended to resolve an industrial dispute.

As a result of the decision, the union's proposed ballot was not authorised, and the school was not required to facilitate the ballot. The Commission's decision highlights the importance of distinguishing between industrial disputes and organisational issues when considering applications for protected action ballots. The precise nature of the dispute and the genuine intention behind the ballot are crucial factors in determining whether authorisation should be granted under the relevant legislation.

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