Independent Education Union of Australia v Portside Christian College Inc T/A Portside Christian College Summary

[2025] FWC 374

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Independent Education Union of Australia
v

Portside Christian College Inc T/A Portside Christian College

(B2025/216)

COMMISSIONER PLATT

ADELAIDE, 10 FEBRUARY 2025

Proposed protected action ballot of employees of Portside Christian College Inc Trading As Portside Christian College

This is an application by the Independent Education Union of Australia (IEU 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 Portside Christian College Inc (Portside Christian College or Employer).

On 7 February 2025, the Commission was advised that the Respondent objected to a written notice period of 3 working days for the purposes of taking protected industrial action.

At 9:00am (SA) Monday, 10 February 2025 I conciliated the matter. Mr Seals represented the Applicant, Ms Sexton represented the Respondent. The Respondent advised it withdrew its objection with respect to the notice period. I also expressed concerns with 3 questions to be put to vote on the basis they may not constitute industrial action. The questions were amended. Both parties advised that they did not object to a Consent Order being made in the terms proposed.

On the basis of the material before me, including the declaration of Robert Seals, Industrial Officer, setting out the steps taken by the IEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Portside Christian College, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 25 February 2025. This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR784161.

This matter will be assigned to a 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 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.

COMMISSIONER

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CaseChat Overview and Summary

The Independent Education Union of Australia applied to the Fair Work Commission for a protected action ballot order in relation to employees of Portside Christian College Inc. The Respondent initially objected to the 3-day notice period for protected industrial action but withdrew the objection during conciliation. Concerns were also raised about the ballot questions, which were subsequently amended. The Commission determined that the requirements for a ballot order under section 443 of the Fair Work Act 2009 had been met, including the notification time and the steps taken in bargaining. Fair Vote Services Pty Ltd was appointed to conduct the ballot, having been approved as a ballot agent under section 468A of the Act. The Commission set the closing date for voting as 25 February 2025, establishing the ballot period under section 448A(2) of the Act. The matter will proceed to a compulsory conciliation conference, with directions to ensure meaningful negotiations.

The primary legal issue before the Commission was whether the conditions under section 443 of the Fair Work Act 2009 were satisfied for the issuance of a protected action ballot order. This required an assessment of the notification period, the amendments to the ballot questions, and the evidence of genuine bargaining efforts by the Independent Education Union. The Commission needed to determine if the Union had genuinely attempted to reach an agreement with Portside Christian College and if all procedural requirements were met, including the proper notice period and the approval of a ballot agent. The Respondent's withdrawal of its objection and the parties' agreement to a Consent Order facilitated the Commission's decision.

In reaching its decision, the Commission considered the declaration by Robert Seals, the Industrial Officer, which detailed the Union's bargaining efforts and their attempts to reach an agreement with the Employer. The Commission was satisfied that the Union had genuinely tried to reach an agreement and that all procedural requirements under section 443(1) of the Act were fulfilled. The withdrawal of the Respondent's objection to the notice period and the amendment of the ballot questions to address potential issues also supported the decision. The appointment of Fair Vote Services Pty Ltd as a ballot agent, as authorised under section 468A, further validated the Commission's decision. The setting of the closing date for voting and the scheduling of a compulsory conciliation conference were in line with the Act's requirements to facilitate further negotiations.

The Commission issued an Order for the protected action ballot to proceed as per the agreed terms, with Fair Vote Services Pty Ltd conducting the ballot. The closing date for voting was set for 25 February 2025, and the matter was assigned for a compulsory conciliation conference to ensure meaningful negotiations between the parties. Directions were to be issued to ensure the parties' attendance at the conference.

Independent Education Union of Australia v Portside Christian College Inc T/A Portside Christian College

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established