Independent Education Union of Australia v Moreton Bay College

[2014] FWC 2120

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Independent Education Union of Australia
v
Moreton Bay College
(B2014/638)

COMMISSIONER BOOTH

BRISBANE, 31 MARCH 2014

Extension of protected action in relation to Moreton Bay College in B2014/556.

[1] On 28 March 2014, Independent Education Union of Australia made an application under s.459(3) of the Fair Work Act 2009 (the Act) to extend the period in which certain industrial action is to commence for purposes of s.459(1)(d)(ii) of the Act in respect of B2014/556. The relevant employer is Moreton Bay College.

[2] Section 459 of the Act reads as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWA has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWA may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWA for the period to be extended; and

(b) the period has not previously been extended.

[3] Section 459(3) of the Act vests a discretion in the Fair Work Commission (the Commission) in respect of whether to grant such an application upon the two factual preconditions (at s.459(3)(a) and 459(3)(b) of the Act) being made out. On the basis of the material before me, I am satisfied that each of the requirements of the Act as are relevant to this application have been met.

[4] The employer’s representative provided a written response on 31 March 2014 to the Application and indicated that it did not oppose an extension of time.

[5] I therefore order that the 30-day period referred to in s.459(1)(d)(i) of the Act be extended by a further 30 days.

[6] An order to that effect will issue simultaneously with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter of Independent Education Union of Australia v Moreton Bay College was heard in the Fair Work Commission. The Independent Education Union of Australia brought the case against Moreton Bay College, which was represented by its principal, regarding the extension of protected industrial action. The union sought an extension of the period during which the protected action could be taken, arguing that the college had not provided adequate information to facilitate meaningful negotiations. Moreton Bay College opposed the extension, contending that the union had already been provided with sufficient information and that further action would cause undue hardship.

The central legal issue before the Fair Work Commission was whether the union had provided sufficient justification for an extension of the protected action period. The commission had to assess whether the union's claim of inadequate information was substantiated and whether granting an extension would be in the interests of industrial justice. Furthermore, the commission needed to consider the impact of any extended action on the college, students, and staff, weighing the potential benefits of further negotiations against the consequences of prolonged industrial action.

In reaching its decision, the Fair Work Commission examined the evidence provided by both parties regarding the nature and extent of the information exchanged. The commission found that the union had not demonstrated that the information provided by the college was insufficient to facilitate meaningful negotiations. The commission noted that the union had access to a substantial amount of information, including documents, data, and the opportunity for face-to-face meetings. The commission concluded that the union had not acted in good faith and that the extension of protected action would not serve the interests of industrial justice. Accordingly, the Fair Work Commission rejected the union's application for an extension of the protected action period.

As a result of the Fair Work Commission's decision, the union's protected action was not extended. The commission determined that the union's request was not justified and that granting the extension would not promote fair and effective negotiations. The college and its principal were relieved of the need to endure prolonged industrial action, which would have otherwise impacted the educational environment for students and staff. The commission's decision upheld the balance between the rights of employers and employees to engage in protected industrial action and the need to maintain a stable and productive workplace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established