Independent Education Union of Australia v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education Office

[2015] FWC 6484

[2015] FWC 6484

FAIR WORK COMMISSION

DECISION

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

Independent Education Union of Australia
v

The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education Office
(B2015/1315, B2015/1318, B2015/1319, B2015/1321, B2015/1324, B2015/1326, B2015/1329, B2015/1330, B2015/1331, B2015/1332 and B2015/1340)

The Roman Catholic Trust Corporation for the Diocese of Rockhampton T/A Diocesan Catholic Education Office
(B2015/1336)

The Roman Catholic Trust Corporation for the Diocese of Cairns T/A Catholic Education Services Cairns

(B2015/1322)

Trustees of the Edmund Rice Education Australia
(B2015/1320, B2015/1327, B2015/1334, B2015/1335)

The Corporation of the Roman Catholic Diocese of Toowoomba
(B2015/1325 and B2015/1328)

St Rita's College Limited; Stuartholme School; Villanova College Limited; St Patrick's College Townsville Limited; Downlands College;
(B2015/1314, B2015/1316, B2015/1317, B2015/1323 and B2015/1333)

COMMISSIONER BOOTH BRISBANE, 23 SEPTEMBER 2015

Proposed protected action ballot by employees of Queensland Catholic Schools and Colleges.

[1] On 17 September 2015 Independent Education Union of Australia, Queensland and the Northern Territory Branch (the IEU) made application for protected action ballot orders under s.437 of the Fair Work Act 2009 (the Act). The IEU seeks protected action ballot orders in relation to groups of employees of each of the schools listed above who are IEU members and who would be covered by a proposed Enterprise Agreement.

[2] These applications follow earlier applications and orders made on 10 August 2015 at 272 Catholic schools throughout Queensland. 1

[3] The parties have agreed to the matter being decided on the papers and I am satisfied it is not necessary to hold a hearing.

Statutory provisions

[4] The relevant statutory provisions as set out below:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1) A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order ) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a) a greenfields agreement; or

(b) a multi-enterprise agreement.

Matters to be specified in application

(3) The application must specify:

(a) the group or groups of employees who are to be balloted; and

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the applicant wishes a person other than the Australian Electoral Commission to be the protected action ballot agent for the protected action ballot, the application must specify the name of the person.

Note: The protected action ballot agent will be the Australian Electoral Commission unless the FWC specifies another person in the protected action ballot order as the protected action ballot agent (see subsection 443(4)).

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a) will be covered by the proposed enterprise agreement; and

(b) either:

(i) are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

[5] Both parties have filed their submissions and witness statements in accordance with the Directions.

[6] The IEU, in addition to its submissions on the matters required under section 437, provided a draft order that, at paragraph 4, specified that the ballot is to be conducted by the Australian Electoral Commission (AEC) by way of attendance ballot.

[7] The Employers’ representative advised that it neither supported nor opposed the current applications subject to its objection to an order specifying an attendance ballot. It stated:

“The respondent employers are concerned about the potential for disruption to schools (likely to be in the first week of term 4) where an attendance ballot is sought.”

[8] It noted that in its view the attendance ballot was inconsistent with the conduct of all but one of the orders that were granted previously. It referred to assistance (in one case) it had provided to the AEC to ensure timetabling issues were complied with.

[9] The question then is whether the Fair Work Commission (the Commission) has power under the Act to specify the nature of the ballot.

[10] This matter was considered in National Union of Workers-New South Wales Branch v ACCO Australia Pty Ltd.² Commissioner Thatcher concluded, after comprehensively reviewing the interrelationship between s.451, s.449(2) and s.450, that the AEC is required, in consultation with the applicant and the employer, to determine the voting method to be used for the ballot. His reasoning followed a request from the employer (ACCO) that a ballot should be a postal ballot. He declined the request for the following reasons (footnotes omitted).

ACCO submits that although the NUW’s application refers to approximately 102 members of the union, its records indicate that only 88 employees are union members. One explanation could be that some employees do not want their employer to know they are a member of the union, although there may be other reasons.

It submits that the ballot should not be an attendance ballot as it would be difficult for the 14 employees to place a ballot and not be identified as union members. It seeks that I direct the AEC to conduct a postal ballot.

The NUW submits that because of s.451, a direction by FWA on the voting method would be ultra vires.

The issue of whether FWA has power to direct the AEC on the voting method requires me to construe paragraph 449(2)(d) in relation to s.451(2), which each appear in Subdivision C (Conduct of protected action ballot) of Division 8, within the context of that subdivision taken as a whole.

Section 449 (Protected action ballot to be conducted by Australian Electoral Commission or other specified ballot agent), which is at the commencement of Subdivision C, includes:

“(2) The protected action ballot agent must conduct the protected action ballot in accordance with the following:

(a) the protected action ballot order;

(b) the timetable for the ballot;

(c) this Subdivision;

(d) any directions given by FWA;

(e) any procedures prescribed by the regulations.” (emphasis added)

Section 450 (Directions for conduct of protected action ballot) applies if the agent is not the AEC. Subsection (2) requires FWA to give the agent written directions in relation to certain prescribed matters, including;

“(a) the development of a timetable;

(b) the voting method, or methods, to be used;

(c) …” (emphasis added)

Therefore, although s.450 is not directly relevant to these proceedings it does assist with the proper construction of paragraph 449(2)(d). For the following reasons the proper application of Subdivision C is that if the agent is not the AEC, (and s.451 - which I will come to - does not apply) the jurisdiction for FWA to direct the agent on the voting method is not paragraph 449(2)(d): rather it is paragraph 450(2)(b):

(a) Paragraph 450(2)(d) mandates FWA to give such directions in writing, whereas the ‘any’ in paragraph 449(2)(d) indicates that the power to give the direction is discretionary;

(b) Paragraph 450(2)(d) is expressed in specific terms; paragraph 449(2)(d) is general in nature;

(c) Paragraph 450(2)(d) has to be read in conjunction with paragraph 450(2)(c), which includes s.451.

The next section in Subdivision C is s.451 (Timetable for protected action ballot) which states:

“(1) This section applies if:

(a) the protected action ballot agent is the Australian Electoral Commission; or

(b) FWA has directed the protected action ballot agent to comply with this section.

Note: If this section does not apply, the protected action ballot agent must comply with directions given by FWA in relation to the matters dealt with by this section (see section 450).

(2) As soon as practicable after receiving a copy of the protected action ballot order, the protected action ballot agent must, in consultation with each applicant for the order and the employer of the employees who are to be balloted:

(a) develop a timetable for the conduct of the protected action ballot; and

(b) determine the voting method, or methods, to be used for the ballot.” (emphasis added)

Therefore, under s.451, FWA has no discretion to direct the AEC in relation to the method of voting. Rather the AEC is required, in consultation with the applicant and the employer, to determine the voting method to be used for the ballot.

[11] This case was followed by Commissioner Bissett in United Voice v Wilson Security Pty Ltd. 3 See also the decision of Senior Deputy President Watson in Construction, Forestry, Mining and Energy Union v Grocon Pty Ltd.4

[12] I concur with the reasoning in these cases, and conclude the proper approach is for the AEC to consult with the parties to determine the voting method to be used for the ballot. The order reflects this.

[13] As to the matters I am required to consider in deciding whether to make a protected action ballot order, I am satisfied that the IEU is a bargaining representative of employees who will be covered by the proposed enterprise agreement, and has standing to bring the application under s.437(1) of the Act. The application specifies the group of employees to be balloted as required by s.437(4)(a) and the questions to be put to the employees to be balloted and includes the nature of the proposed industrial action (s.437(4)(b)).

[14] The statutory declaration of Brad Hayes, Assistant Secretary of the IEU, provided with the application, details ongoing negotiations with both the Religious Institute single bargaining unit and the Diocesan single bargaining unit. Mr Hayes details some in-principle agreements of meetings held on 15 and 16 September 2015 but lists unresolved matters where employee representatives have sought further consideration. I am satisfied that the IEU has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[15] I am satisfied that the requirements in ss.443(1)(a) and (b) have been met and accordingly orders must be made. With the exception of the type of ballot, orders based on the draft orders provided with the applications will issue at the same time as this decision. This includes orders that notice of industrial action will be 5 days, for reasons outlined in my decision PR570512, and that the ballot closes on Friday 16 October 2015.

COMMISSIONER

 1   PR570214, PR570339, PR570312, PR570237, PR570521, PR570284, PR570181, PR570214, PR570339, PR570312, PR570237, PR570521, PR570284, PR570181, PR570182, PR570183, PR570184, PR570185, PR570186, PR570187, PR570188, PR570189, PR570190, PR570191, PR570192, PR570193, PR570194 PR570195 and PR570196.

2 [2009] FWA 226 at paragraphs 50-63

 3   [2011]FWA 5828 at paragraphs30-44

 4   [2012] FWA 1716

Printed by authority of the Commonwealth Government Printer

<Price code C, PR572073>