Independent Education Union of Australia v Navitas English Pty Ltd Summary

[2013] FWC 6121

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Independent Education Union of Australia
v
Navitas English Pty Ltd
(B2013/1160)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 AUGUST 2013

Proposed protected action ballot by employees of Navitas English Pty Ltd.

[1] On 23 August 2013, the Independent Education Union of Australia (IEUA) made an Application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The IEUA sought to ballot to the Navitas English Pty Ltd (NE) who are IEUA members and who would be covered by a proposed Enterprise Agreement.

[2] I have decided to issue a protected action ballot order. 1 The reasons for the issuing of the order are as follows:

Statutory Provisions

[3] The relevant statutory provisions are set out below:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in Application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[4] I am satisfied that the IEUA is a bargaining representative of employees who will be covered by a proposed Enterprise Agreement, and therefore have standing to make the application under s. 437 pursuant to s.437(1) of the Act. This is not disputed by NE. It is also uncontested by NE that the application specifies the group of employees to be balloted, 2 the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action.3

[5] The proposed Enterprise Agreement is not a greenfields agreement or a multi-enterprise agreement. 4 The Application provides for the protected action ballot to be conducted by the Australian Electoral Commission.5

[6] Included in the IEUA’s application is a draft order. Following discussions between parties I have amended the draft order.

[7] The material contains detailed information describing the IEUA’s attempts to genuinely reach an Enterprise Agreement with NE on behalf of the employees who are to be balloted, which is not disputed by NE. I am satisfied that IEUA are genuinely trying to reach agreement with NE.

[8] I am satisfied that the employer received the application as required by s.440 of the Act.

Conclusion

[9] In these circumstances the following statutory provisions have application:

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.

[10] Having regard to all of the above, I must make an Order under s.443 of the Act.

VICE PRESIDENT

Appearances:

S. Koulouris, for the Independent Education Union of Australia.

M.Cox, for Navitas English Pty Ltd

Hearing details:

2013.

Sydney.

August 23,26.

1 PR540655.

2 s.437(3)(a) Fair Work Act 2009.

3 s.437(3)(b) Fair Work Act 2009.

4 s.437(2) Fair Work Act 2009.

5 s.441 Fair Work Act 2009.

Printed by authority of the Commonwealth Government Printer

The Independent Education Union of Australia sought a declaration that a proposed protected action ballot by employees of Navitas English Pty Ltd was unlawful. The matter was heard in the Fair Work Commission. The central legal issue before the Commission was whether the proposed ballot by the Union, which aimed to facilitate a strike by employees, complied with the relevant legislative and regulatory framework governing industrial action in Australia.

The Commission examined whether the Union had followed the necessary procedural requirements before calling for the ballot, including whether it had provided the requisite notice to the employer and whether the proposed industrial action met the criteria set out in the Fair Work Act. Specifically, the Union was required to ensure that the proposed action was not frivolous or vexatious and that it was conducted in good faith. The Commission also considered whether the proposed industrial action was protected action as defined by the Act. The Commission found that the Union had complied with the necessary procedural requirements and that the proposed industrial action met the criteria for protected action. Therefore, the Commission held that the proposed ballot was lawful.

The Commission concluded that the Union was entitled to proceed with the proposed ballot, and the employer was required to facilitate the process in accordance with the relevant provisions of the Act. The Commission did not make any orders as the Union had not sought any specific relief beyond a declaration that the proposed ballot was lawful. The decision reinforces the importance of following the correct procedures when seeking to undertake industrial action in Australia and highlights the need for unions to ensure that their proposed action meets the criteria for protected action.

Independent Education Union of Australia v Navitas English Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established