Independent Education Union of Australia v NECA Education & Careers T/A NECA E & C

[2024] FWC 585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Independent Education Union of Australia
v

NECA Education & Careers T/A NECA E & C

(B2024/181)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 6 MARCH 2024

Proposed protected action ballot of employees of NECA Education & Careers

This is an application by the Independent Education Union of Australia (IEUA or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of NECA Education & Careers T/A NECA E & C (NECA or Employer).

On 5 March 2024, the Commission was advised, in effect, that NECA 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 James Rankin, Union Organiser of the IEUA, setting out the steps taken by the IEUA in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with them, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 22 April 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

Several ballot questions were adjusted following consultation with the parties.

An order has been separately issued in PR772061.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia applied to the Fair Work Commission for a protected action ballot order against NECA Education & Careers. This application was made under section 437 of the Fair Work Act 2009. The matter was heard by Deputy President Hampton and was decided on the papers, as NECA did not object to the application. The dispute centred around the negotiation of a proposed enterprise agreement and the procedural requirements for a protected action ballot under the Fair Work Act.

The primary legal issue before the Deputy President was whether the conditions for a protected action ballot, as outlined in section 443 of the Act, were met. Specifically, the Deputy President needed to ascertain if the Independent Education Union of Australia had genuinely attempted to reach an agreement with NECA and if the notification period for the proposed agreement was correctly calculated. Additionally, the Deputy President had to determine an appropriate closing date for the ballot voting, ensuring it complied with the statutory requirements and the operational constraints of the Australian Electoral Commission.

The Deputy President found that all conditions for a protected action ballot were satisfied. The IEUA had demonstrated its genuine attempts to negotiate with NECA and had met the notification period requirements. The Deputy President ordered that the Australian Electoral Commission would conduct the ballot and set the closing date for voting as 22 April 2024, which was effectively 30 working days from the order's issuance. The Deputy President also noted that several ballot questions had been adjusted following consultations with the parties, and a separate order had been issued to reflect these changes. Finally, the matter was assigned to another member of the Commission to conduct the compulsory conciliation conference under section 448A of the Act.

The final orders included the approval of the protected action ballot, the determination of the ballot closing date, and the assignment of the compulsory conciliation conference to another member of the Commission. This decision ensures that the procedural requirements for a protected action ballot are met and sets the stage for further negotiations between the IEUA and NECA under the oversight of the Fair Work Commission.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established