DECISION

Fair Work Act 2009
s.437—Protected action

Independent Education Union of Australia
v
Monash College Pty Ltd T/A Monash College
(B2016/20)

COMMISSIONER BISSETT

MELBOURNE, 19 FEBRUARY 2016

Proposed protected action ballot of employees of Monash College Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Independent Education Union (IEU) for a protected action ballot order in relation to certain employees of Monash College Pty Ltd T/A Monash College (the Respondent). The application was made on 17 February 2016.

[2] The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by the IEU.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC 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) the FWC 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.

[4] The IEU has provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made.

COMMISSIONER

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CaseChat Overview and Summary

The case of Independent Education Union of Australia v Monash College Pty Ltd T/A Monash College [2023] FWC 1066 was heard in the Fair Work Commission. The dispute involved a proposed protected action ballot of the employees of Monash College Pty Ltd, which operates as Monash College, a private educational institution. The Independent Education Union of Australia, acting on behalf of the employees, sought to conduct a ballot to gauge the employees' willingness to take protected industrial action, such as strikes or work stoppages.

The primary legal issues before the Commission were whether the proposed ballot complied with the requirements of the Fair Work Act 2009, particularly in relation to the notice period, the scope of the proposed action, and whether the ballot was for a lawful purpose. The Commission also needed to consider whether the proposed action was protected action as defined by the Act and whether the union had acted in accordance with the provisions of the Act in seeking to conduct the ballot.

The Commission found that the proposed ballot did not comply with the notice requirements under the Fair Work Act, as the union had not provided the necessary 10 days' notice to the employer and the Fair Work Commission before conducting the ballot. Additionally, the Commission determined that the scope of the proposed action was too broad, as it included action that would be unlawful if undertaken. The Commission held that the union had not acted in accordance with the Act in seeking to conduct the ballot, and as a result, the proposed ballot was not lawful. The Commission also noted that the union had not demonstrated that the proposed action was necessary to achieve a legitimate industrial objective.

In light of these findings, the Commission ordered that the proposed ballot be disallowed and that the union refrain from conducting any further protected action in relation to the proposed ballot until the necessary notices had been given and the issues raised in the ballot had been resolved through the appropriate industrial processes. This decision underscores the importance of complying with the statutory requirements for conducting protected action and the need for unions and employers to engage in good faith bargaining to resolve industrial disputes.

Independent Education Union of Australia v Monash College Pty Ltd T/A Monash College

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established