Independent Education Union of Australia v Mount Scopus Memorial College Limited T/A Mount Scopus Memorial College

[2022] FWC 2374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Independent Education Union of Australia
v

Mount Scopus Memorial College Limited T/A Mount Scopus Memorial College

(B2022/1338)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 6 SEPTEMBER 2022

Proposed protected action ballot of employees of Mount Scopus Memorial College Limited T/A Mount Scopus Memorial College

This is an application by the Independent Education Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Mount Scopus Memorial College Limited T/A Mount Scopus Memorial College (Respondent).

On 6 September 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Earl James of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR745559.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia (Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Mount Scopus Memorial College Limited T/A Mount Scopus Memorial College (Respondent). The Applicant sought to hold a ballot for protected action due to the ongoing dispute in bargaining for a new enterprise agreement with the Respondent. On 6 September 2022, the Respondent did not object to the application, leading to the Deputy President determining the matter on the papers without the need for a hearing.

The central legal issue before the court was whether the Applicant had satisfied the statutory requirements for holding a protected action ballot under the Fair Work Act 2009. Specifically, the court had to determine if the notification time in relation to the proposed agreement was met and if the conditions in section 443(1) of the Act had been fulfilled. The Applicant's declaration, along with the steps taken in bargaining with the Respondent, formed the basis of the evaluation.

The Deputy President, satisfied with the evidence presented, found that the Applicant had genuinely tried to reach an agreement with the Respondent and that the notification time was appropriately observed. Given the Respondent's lack of objection and the Applicant's compliance with the statutory requirements, the Deputy President concluded that the conditions for a protected action ballot were met. Consequently, an order was issued in PR745559 to allow the ballot to proceed.

The court's final order authorised the Independent Education Union of Australia to conduct a protected action ballot among the specified employees of Mount Scopus Memorial College Limited. This decision facilitated the continuation of the bargaining process and allowed the employees to express their views through the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established