Independent Education Union of Australia v Stuartholme School

[2009] FWA 711

[2009] FWA 711

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Independent Education Union of Australia
v
Stuartholme School & Ors
(B2009/10821) (B2009/10823) (B2009/10824) (B2009/10825) (B2009/10826) (B2009/10827) (B2009/10828) (B2009/10829) (B2009/10830) (B2009/10831) (B2009/10832) (B2009/10833) (B2009/10834) (B2009/10835) (B2009/10837) (B2009/10838)

SENIOR DEPUTY PRESIDENT RICHARDS BRISBANE, 16 OCTOBER 2009

Proposed protected action ballot by employees of various Catholic Schools.

[1] On Thursday, 15 October 2009, the Independent Education Union of Australia (“the Union”) lodged 18 applications in Fair Work Australia (“FWA”) seeking protected action ballot orders under s.437 of the Fair Work Act 2009 (“the FW Act”) in relation to the following employers:

(a) Stuartholme School;

(b) Corporation of the Sisters of Mercy of the Diocese of Townsville;

(c) Corporation of the Sisters of Mercy of the Diocese of Townsville trading as St Patrick's College;

(d) Padua College Limited trading as Padua College;

(e) The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education Office;

(f) The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as Brisbane Catholic Education Office;

(g) St. Ursula's College Limited trading as St Ursula's College;

(h) Roman Catholic Trust Corporation for the Diocese of Rockhampton trading as Diocesan Catholic Education Services – Rockhampton;

(i) The Trustees of the Christian Brothers (Queensland) T/A Christian Brothers' Colleges

(j) Roman Catholic Trust Corporation for the Diocese of Rockhampton trading as Diocesan Catholic Education Services – Rockhampton;

(k) Mary Mackillop College;

(l) Roman Catholic Trust Corporation for the Diocese of Townsville trading as Catholic Education Office – Townsville;

(m) Trustees of the Marist Brothers - Ashgrove (Marist College Ashgrove);

(n) Roman Catholic Trust Corporation for the Diocese of Townsville trading as Catholic Education Office – Townsville;

(o) Iona College Limited trading as Iona College;

(p) Iona College Limited;

(q) Downlands College Limited trading as Downlands College; and

(r) The Corporation of the Trustees of the Order of the Sisters of Mercy in Queensland trading as All Hallows' School.

[2] Two of these applications, in B2009/10822 and B2009/10836 were discontinued shortly before hearing.

[3] Upon consideration of the applications, it was revealed that a copy of each application in respect of each of the matters as listed had not been given to each of the employers of the employees who the union proposed to ballot.

[4] Section 4440 of the FW Act reads as follows:

“Notice of application

Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted […].”

[5] Section 441 of the FW act reads as follows:

“Application to be determined within 2 days after it is made

(1) FWA must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, FWA must not determine the application unless it is satisfied that each applicant has complied with section 440.” [My emphasis]

[6] Rules 8 and 9 of the Rules (and Form R34) of Fair Work Australia set out the requirements for service, and they reflect the FW Act’s requirements.

[7] The Union provided copies of the applications earlier today to the employer representatives who have customarily represented each of the employers. But those representatives indicated that the employers of the employees to be balloted had not received a copy of the applications nor did any of the employers instruct the representatives to appear on their behalf.

[8] Demonstrably, the mandatory requirements of s.440 of the FW Act had not been met.

[9] As the hearing was conducted on the 26^th hour following the lodgement of the applications, it was not possible to cure the defective conduct ‘on the fly’, as were.

[10] Each of the applications must therefore be dismissed. An order dismissing each application will issue simultaneously with this decision.

SENIOR DEPUTY PRESIDENT

Appearances:

J Spriggs for the Independent Education Union of Australia

C O’Neill for the Queensland Catholic Education Commission

K Quick for the Brisbane Catholic Education Office

Hearing details:

Brisbane.

2009:

16 October.

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