Independent Education Union of Australia v Strathcona Baptist Girls Grammar School Limited

[2025] FWC 699

[2025] FWC 699

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Independent Education Union of Australia
v

Strathcona Baptist Girls Grammar School Limited

(B2025/420)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 12 MARCH 2025

Proposed protected action ballot of employees of Strathcona Baptist Girls Grammar School Limited

1. 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 Strathcona Baptist Girls Grammar School Limited (Strathcona or Employer).

1. On 7 March 2025, the Commission was advised that the Employer, in effect, did not object to the Application. However, it subsequently made some submissions regarding the proposed ballot questions in light of certain issues being raised by the Commission. I canvass this aspect below.

1. Three of the original ballot questions in Clause 5 of the proposed order were subsequently amended by the IEU with a view to confirming that the proposed action was industrial action within the meaning of s.19 of the Act. The Employer then proposed some further alternative ballot questions and raised some associated child safety concerns. The IEU subsequently agreed to provide a safety undertaking with respect to any notice of industrial action that is given to the employer:

1. I indicated to the parties that my preliminary view was to accept the safety undertaking provided by the IEU and to reference this in the decision and Order. Further, I advised that I would determine the matter on the papers in the absence of a request for a hearing. Given the absence of any response, I have decided to grant leave to amend the application and determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Amy Spencer, Organiser, 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 Strathcona, 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.

1. The ballot is to be conducted by Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

1. 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 26 March 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. In terms of the ballot questions in clause 5, these must state[2] the nature of action that is on the face of the question capable of being industrial action within the meaning of s.19 of the Act.[3] I am satisfied that given the circumstances of these parties, all of the ballot questions as revised meet these requirements and are capable of forming part of an order made in conformity with the Act. Further, whilst the Employer raised alternative drafting of some questions to limit the impact of some proposed actions, at this stage these are primarily matters for the Applicant. There are options available to an employer in this context if and when the detail of any industrial action is subsequently notified by the IEU.

1. As outlined earlier, the following undertaking, has been provided by the Applicant, which has also been added to the Order as part of the ballot questions:

Further to the notice of intention of our members to take protected industrial action dated [XXXX], the IEU gives the following undertaking in the relation to the protected industrial action notified to the employer in relation to the respective group of employees involved.

The IEU undertakes to ensure as far as reasonably practicable that members will be available to perform the work in an emergency situation, where there is a risk to personal health or safety or child safety concerns.

1. An Order has been separately issued in PR785095.

1. 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, 10 working days from the making of the Order, and was the period sought in the Application.

[2] Section 437(3)(b) of the Act.

[3] See Mornington Peninsula Shire Council v Australian Municipal, Administrative, Clerical and Services Union[2017] FWCFB 44740 at [46].

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