Independent Education Union of Australia v St Peter's Collegiate Girls' School Inc

[2025] FWC 494

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Independent Education Union of Australia
v

St Peter's Collegiate Girls' School Inc

(B2025/264)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 FEBRUARY 2025

Proposed protected action ballot of employees of St Peter's Collegiate Girls' School Inc

This is an application by the Independent Education Union of Australia acting through its South Australian Branch (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 St Peter's Collegiate Girls' School Inc (St Peter’s or Employer).

On 18 February 2025, the Commission was advised that the Employer did not object to the Application in an amended form following discussion between the parties. The parties communicated a consent position. Accordingly, I have granted leave to amend the application and determined the matter on the papers without conducting a hearing.

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 St Peter’s, 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 12 March 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

I am satisfied that there are relevant exceptional circumstances required by s.443(5), justifying an extended period of written notice for the purposes of s.414(2)(b) of the Act when taking industrial action set out in the Order made by the Commission. The extended notice period of four (4) working days applies to the items listed within Clause 5 of the Order.

An Order has been separately issued in PR784506.

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 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, 14 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Independent Education Union of Australia, through its South Australian Branch, 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 St Peter's Collegiate Girls' School Inc. The application was made following unsuccessful negotiations between the union and the school regarding an enterprise agreement. The school did not object to the application, and a consent position was reached between the parties. Consequently, the Deputy President of the Commission, Hampton, granted leave to amend the application and determined the matter on the papers without a hearing.

The key legal issues before the Commission were whether the union had genuinely tried to reach an agreement with the employer and whether the application met all the requirements of section 443(1) of the Act. The Commission found that the union had indeed been genuinely trying to reach an agreement and that all the requirements of section 443(1) were met based on the declaration of Robert Seals, the Industrial Officer, who outlined the steps taken by the union in bargaining with the employer.

The Deputy President concluded that the Commission was satisfied with the proposed agreement's notification time and the union's efforts to reach an agreement. The Commission granted the application, setting the closing date for voting as 12 March 2025. It was determined that exceptional circumstances justified an extended notice period of four working days for the purposes of section 414(2)(b) of the Act when taking industrial action. This decision was made in light of the items listed within Clause 5 of the Order. The matter will be assigned to another Member of the Commission to conduct the compulsory conciliation conference under section 448A of the Act.

The Fair Work Commission issued an order granting the application for a protected action ballot order and setting the voting closing date as 12 March 2025. The order also established an extended notice period of four working days for the purposes of section 414(2)(b) of the Act when taking industrial action for the items listed within Clause 5 of the Order. Another Member of the Commission will conduct the compulsory conciliation conference under section 448A of the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established