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 5390

[2015] FWC 5390

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

(B2015/773, B2015/774, B2015/775, B2015/776, B2015/777, B2015/778, B2015/779, B2015/780, B2015/781, B2015/782, B2015/783, B2015/784, B2015/785, B2015/786, B2015/787, B2015/788, B2015/789, B2015/790, B2015/791, B2015/792, B2015/793, B2015/794, B2015/795, B2015/796, B2015/797, B2015/798, B2015/799, B2015/800, B2015/801, B2015/802, B2015/803, B2015/804, B2015/805, B2015/806, B2015/807, B2015/808, B2015/809, B2015/810, B2015/811, B2015/812, B2015/813, B2015/814, B2015/815, B2015/816, B2015/817, B2015/818, B2015/819, B2015/820, B2015/821, B2015/822, B2015/823, B2015/824, B2015/825, B2015/826, B2015/827, B2015/828, B2015/829, B2015/830, B2015/831, B2015/832, B2015/833, B2015/834, B2015/835, B2015/836, B2015/837, B2015/838, B2015/839, B2015/840, B2015/841, B2015/842, B2015/843, B2015/844, B2015/845, B2015/846, B2015/847, B2015/848, B2015/849, B2015/850, B2015/851, B2015/852, B2015/853, B2015/854, B2015/855, B2015/856, B2015/857, B2015/858, B2015/859, B2015/860, B2015/861, B2015/862, B2015/863, B2015/864, B2015/865, B2015/866, B2015/867, B2015/868, B2015/869, B2015/870, B2015/871, B2015/872, B2015/873, B2015/874, B2015/875, B2015/876, B2015/877, B2015/878, B2015/879, B2015/880, B2015/881, B2015/882, B2015/883, B2015/884, B2015/885, B2015/886, B2015/887, B2015/888, B2015/889, B2015/890, B2015/891, B2015/892, B2015/893, B2015/894, B2015/895, B2015/896, B2015/897, B2015/898, B2015/899, B2015/900, B2015/901, B2015/902, B2015/903, B2015/904, B2015/905, B2015/906, B2015/907)

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

(B2015/908, B2015/909, B2015/910, B2015/911, B2015/912, B2015/913, B2015/914, B2015/915, B2015/916, B2015/917, B2015/918, B2015/919, B2015/920, B2015/921, B2015/922, B2015/923, B2015/924, B2015/925, B2015/926, B2015/927, B2015/928, B2015/929, B2015/930, B2015/931, B2015/932, B2015/933, B2015/934, B2015/935, B2015/936, B2015/937, B2015/938, B2015/939, B2015/940, B2015/941, B2015/942, B2015/943, B2015/944)

The Roman Catholic Trust Corporation for the Diocese of Townsville T/A Townsville Catholic Education Office

(B2015/945, B2015/946, B2015/947, B2015/948, B2015/949, B2015/950, B2015/951, B2015/952, B2015/953, B2015/954, B2015/955, B2015/956, B2015/957, B2015/958, B2015/959, B2015/960, B2015/961, B2015/962, B2015/963, B2015/964, B2015/965, B2015/966, B2015/967, B2015/968, B2015/969, B2015/970)

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

(B2015/971, B2015/972, B2015/973, B2015/974 B2015/975, B2015/976, B2015/977, B2015/978, B2015/979, B2015/980, B2015/981, B2015/982, B2015/983, B2015/984, B2015/985, B2015/986, B2015/987, B2015/988, B2015/989, B2015/990, B2015/991, B2015/992, B2015/993, B2015/994, B2015/995, B2015/996)

Trustees of the Edmund Rice Education Australia
(B2015/997, B2015/998, , B2015/999, B2015/1000, B2015/1001, B2015/1002, B2015/1003, B2015/1004, B2015/1005, B2015/1006, B2015/1007, B2015/1008, B2015/1009, B2015/1010, B2015/1011, B2015/1012, B2015/1013, B2015/1014, B2015/1015, B2015/1016)

The Corporation of the Roman Catholic Diocese of Toowoomba

(B2015/1040, B2015/1041, B2015/1042, B2015/1043, B2015/1044, B2015/1045, B2015/1046, B2015/1047, B2015/1048, B2015/1049, B2015/1050, B2015/1051, B2015/1052, B2015/1053, B2015/1054, B2015/1055, B2015/1056, B2015/1057, B2015/1058, B2015/1059, B2015/1060, B2015/1061, B2015/1062, B2015/1063, B2015/1064, B2015/1065, B2015/1066, B2015/1067)

All Hallows’ School Limited T/A All Hallows’ School

(B2015/1068)

Brigidine College, Indooroopilly T/A Brigidine College

(B2015/1069)

Downlands College

(B2015/1070)

Iona College Limited

(B2015/1071)

Loreto College Coorparoo

(B2015/1072)

Lourdes Hill College

(B2015/1073)

Mount Alvernia College Limited

(B2015/1074)

Mt St Michael's College Limited

(B2015/1075)

Padua College Limited

(B2015/1076)

St Patrick's College Townsville Limited

(B2015/1077)

St Rita's College Limited

(B2015/1078)

St Ursula's College Toowoomba

(B2015/1079)

St Ursula's College Limited

(B2015/1080)

Stuartholme School

(B2015/1081)

Trustees of the Marist Brothers - Ashgrove T/A Marist College Ashgrove

(B2015/1082)

Villanova College Limited

(B2015/1083)

COMMISSIONER BOOTH BRISBANE, 13 AUGUST 2015

Proposed protected action ballot by employees of Queensland Catholic schools.

[1] This is a revised and edited version of a decision delivered in transcript on 10 August 2015.

[2] This is an application for protected action ballot orders brought by the Independent Education Union of Australia-Queensland and Northern Territory Branch (the IEUA or the Union).

[3] The IEUA is entitled to represent the industrial interests of employees in Catholic schools in Queensland. It submits that it has members at each of the schools the subject of these applications, and the Respondents do not object.

[4] The orders are sought against 22 employers, being the 17 Religious Institute Schools and 5 diocesan school employers in Queensland.

[5] The Religious Institute Schools Employers are some of Queensland’s largest Catholic schools, such as All Hallows and Downlands College. The 5 diocesan employers are geographically based in Brisbane, Cairns, Rockhampton, Toowoomba and Townsville.

[6] The 22 employing authorities employ staff across 298 schools.

[7] The Queensland Catholic Education Commission (QCEC) coordinates across these varying employing authorities.

[8] In 2012, and again in 2015, the QCEC obtained a single interest employer ministerial declaration and authorisation which permits the various employing authorities to bargain together for an enterprise agreement.

[9] On 27 February 2015, the QCEC caused Notices of Employee Representational Rights to be sent by each of the 22 employing authorities to their employees.

[10] Bargaining, formally commenced on 31 March 2015 and continued through July 2015.

[11] The employers are presently negotiating for 2 agreements substantially in the same terms as the 2 current agreements. The union seeks 22 separate agreements, one for each employer. That was also the Union’s position in the previous bargaining round. For example, see the Stuartholme School appeal (Stuartholme) [2010] FWAFB 1714 at paragraph [2].

[12] Mr Hayes, the Assistant Secretary, of the Union in evidence noted:-

“This issue of scope of the agreement and ultimately the number of agreements was the subject of discussion at the meetings which occurred on 21 and 22 July, 2015.”

[13] Mr Hayes’ statement details the steps taken by parties to date. He submitted at paragraph [43]:-

“It is the opinion of the IEUA representatives that stalemate has been reached in the negotiations. An obvious example is the quantum of wage increase. In addition, there are other issues where substantial argument has occurred and that resolution is not obvious.”

[14] At paragraph 53, Mr Hayes deposes as to the nature of the applications made and states:-

“The IEUA has contacted members in schools and asked members whether they wished to participate in a Protected Action Ballot. Applications for the protected action ballot have been filed for the Catholic schools where members identified a desire to participate in such a ballot.”

[15] This has resulted in the present separate ballot applications on the school-by-school basis.

[16] Each of the Religious Institute Schools is the subject of the application.

[17] Separate applications are brought for most but not every school in each diocese. For example, in Townsville, 26 ballot orders are sought for the 26 of the 28 schools under that employing authority. See Mr Whitehouse’s statement at paragraph 39.

[18] It is likely, though not the subject of evidence, that this is an example of 2 schools that did not identify a desire to participate in the ballot.

[19] As I understand it, there are 272 applications. All 17 religious institute schools are covered leaving 235 applications covering diocesan schools.

[20] Each application is school based. In the bargaining round in 2009, the Union did not seek school based orders but sought and obtained separate ballot orders for each of its members grouped as teachers on one hand, and non-teachers on the other. Senior Deputy President Richards issued a total of 37 protected action ballot orders in regard to the 22 employing authorities.

[21] I quote the full text of paragraph [26] of the Full Bench’s decision in the Stuartholme appeal:-

“As we indicated earlier, the appeals against the decisions of the 18 January 2010 do not strike that the decision to make the protected action ballot orders. In case we’re wrong in that view it is important for us to indicate that, for the reasons we have given in relation to the appeals against the decision of 10 January 2009, we would not grant permission to appeal against the decision of 18 January 2010.”

[22] In my view, the Full Bench indicated that Senior Deputy President Richard’s decision to make 37 protected action ballot orders against the 22 employers would not have been the subject of a successful appeal.

[23] I turn now to the parties’ positions.

[24] The Union submits that the requirements of s.437 are satisfied and the ballot orders should issue.

[25] The Employers object to the granting of the applications, arguing that PAB orders must allow all employees who would be covered by the relevant proposed enterprise agreement to be balloted and it is impermissible to issue the orders on a school by school basis.

The Law

[26] Section 437 provides relevantly as follows. Subsection (1) provides 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 … may apply to the FWC for an order (a protection 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.

[27] Subsection 3 details the matters to be specified in the application:

(3) The application must specify:

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


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

[28] Subsection 5 is a limiting provision. It provides:

(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 protection 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.

The Applicant’s Submissions

[29] The Union seeks the total of 272 PAB orders, each of which in drafts attached to each application states in the following terms the group or groups of employees to be balloted:

The group of employees to be balloted are those employees of [the named employing authority] who are employed at [the named school] whose administrative address is [the address] who are members of and entitled to be industrially represented by the Independent Education Union of Australia-Queensland and Northern Territory Branch and who would be subject to the proposed enterprise agreement.

[30] Mr Spriggs submits that this formula satisfies the requirements of s.437(3)(a).

[31] The draft orders each state the questions to be put in identical terms, including the nature of the proposed industrial action in satisfaction of s.437(3)(b). Each application proposed the ballot to be conducted by the Australian Electoral Commission.

The Employers’ Position

[32] The Employers object to the applications. Mr Williams summarised the argument as follows at paragraph 49 of his written submissions:

“(a) An application for a PAB must be related to a ‘proposed’ enterprise agreement.

(b) In this case, the only proposed enterprise agreement are two replacement agreements, one for the diocesan schools and one for the religious institute schools.

(c) Therefore, an application for a PAB to be valid, it must relate to one of the two enterprise agreements.

(d) It is implicit that the PAB must allow all employees who will be covered by the proposed enterprise agreement to participate in the ballot because otherwise the PAB regime would be subverted and employees would be disenfranchised in relation to an issue of grave significance to them.

(e) Even if it could be said that there was a ‘proposal’ for an individual enterprise agreement for each employer, which apart from the formal statement of position is inconsistent with the evidence, there is no proposal for an enterprise agreement covering only individual schools.

(f) It is impermissible to divide the employees who will be covered by a proposed agreement into subgroups and conduct individual ballots within those subgroups (or within those subgroups). That is what the applications are attempting to achieve.”

[33] In written and oral submissions, Mr Williams also acknowledged that Stuartholme is authority for the proposition that scope can be a proper matter for bargaining under the Fair Work Act 2009 (the Act).

[34] In the Employers’ submission, while it may be possible for the PAB orders to be made against the 22 employers they cannot issue for individual schools in the absence of a proposal for an agreement limited to a coverage of that school.

Does then the absence of a proposal to limit the coverage to individual schools prohibit the granting of the orders?

[35] For the Employers’ argument to succeed on this point, s.437 would have to be read as mandating that the scope of the proposed enterprise agreement is known at the time the PAB is filed.

[36] But after Stuartholme, it is clear that the nature of the ultimate enterprise agreement is a matter for bargaining.

[37] What does need to be certain because of s.437(5)(a) is which employees will be covered by the proposed agreement.

[38] On the evidence this is satisfied. The Employers gave a Notice of Employee Representational Rights to its employees who are to be covered by the enterprise agreement (I will return to this point with regard to the kindergarten teachers).

[39] The Employers also argued the PAB orders on a school-by-school basis can only issue if there are proposed enterprise agreements relevant to that basis. Mr Williams submitted that that might be achieved, for example, by a scope order or a majority support determination. In my view, there is nothing in s.437 that would require this.

[40] The proposition seems to conflate the bargaining process, of which PAB orders might be part, with the making of an enterprise agreement. The precise terms and scope must be known before an enterprise agreement can be put to a vote, but protected action can be about many matters, including, as we know from Stuartholme, scope questions.

[41] So, Stuartholme stands for the proposition that the exact nature of the proposed enterprise agreement that triggers s.437(1) does not need to be certain. Furthermore, there is no authority for the proposition that the ultimate agreement must be known or canvassed in bargaining for a PAB order to issue. There is no such restriction in s.437(1).

[42] In this case it is clear who might be covered and the absence of a proposal for an enterprise agreement limiting in coverage to individual schools does not prohibit the granting of the ballot.

[43] I now turn to the Employer’s second argument that all employees who are within the scope of the proposed enterprise agreement (as limited by subsection (5)) must be included in the PAB orders.

[44] As mentioned earlier, the Full Bench, in Stuartholme upheld the decision at first instance to make separate protected action ballot orders in terms of teaching and non-teaching staff without giving particular reasons.

[45] The object of the division is to establish a fair, simple, democratic process to allow bargaining representatives to determine whether employees wish to engage in particular protected industrial action for the proposed enterprise agreement.

[46] Mr Williams particularly emphasises the democratic part of this process arguing that ballots that do not allow all employees to vote are undemocratic.

[47] The Union submits that its approach was consistent with the objective of democracy. It has limited its applications only to schools that want to be balloted, and not impose ballots on schools that did not want such a process.

[48] The parties’ views might diverge but it is the matters set out in s.443 that determine whether the orders issue.

[49] Section 443 requires the Commission to make a PAB order in certain circumstances as follows:

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement, if:

(a) an application has been made under section 437; and


(b) the FWC is satisfied that each applicant has been, and is, generally trying to reach agreement with the employer of the employees who are to be balloted.

[50] If these requirements are met the order must issue.

[51] There’s no dispute about paragraph (b). The only question then is whether the Union’s applications are valid. That, in turn, requires an answer as to whether a valid application can relate to employees who might be balloted, are fewer in number than who have received Notices of Employee Representational Rights.

[52] This is an interesting question because the application is in the hands of the Union, whereas the Notice is in the hands of the Employers.

[53] I conclude, when reading s.437(1), (3) and (5) together, the answer must be the applications are valid.

[54] Subsection (3) requires the application to specify “the group or the group of employees who are to be balloted. It does not, for example, require that all employees who will be the subject of the agreement be balloted. These applications, school by school, identify the groups of employees to be balloted”.

[55] Subsection (5), a limiting provision, contemplates that not all employees who will be covered are to be balloted. It is only those represented by the bargaining representative et cetera.

[56] That is, by force of the Act itself, the employees to be balloted could well be a sub-set of those who must be given Notices of Employee Representational Rights.

[57] As to s.443(1)(b), I am satisfied that each Applicant has been and is genuinely trying to reach agreement with the Employer of the employees who are to be balloted: that is not contested. But the section provides that satisfaction is not with all employees who will be covered by the agreement, only those who are to be balloted.

[58] The requirements in s.443 are satisfied and the protected action ballot orders must issue.

[59] There are 2 other issues.

Kindergarten teachers

[60] Although not part of the evidence or submissions of the Applicant, in oral submissions Mr Spriggs sought to include kindergarten teachers who worked for the various named employers to be included in the ballots.

[61] The Respondents resisted this.

[62] In their view, the negotiations did not run to kindergarten teachers, a view supported by the fact that Notices of Employee Representational Rights were not served on kindergarten teachers. Mr Williams provided evidence from the Bar table that some kindergartens were not part of the same employer group.

[63] While it is clear that this is an important issue it has not been properly ventilated in these proceedings.

[64] However, it does need to be dealt with in order to provide certainty in relation to the nature of the ballots and those who are to be balloted.

[65] In my view, without being served a Notice of Employee Representational Rights bargaining has not begun with these employees.

[66] As a result kindergarten teachers cannot be included in this application. Of course, that does not mean ultimately they will not be part of theagreement but that is not a matter for this application.

Notice period

[67] Section 443(5) provides in exceptional circumstances that should there be an extension of the notice period of 3 days.

[68] The IEUA proposes a period of 5 days noting that this has been ordered in other matters, including the Australian Education Union v The State of Victoria [2012] FWA 3729.

[69] The Employer seeks 7 days, noting the significant issue for the school community and particularly the needs of families to seek urgent alternative arrangements and the public interest in schools and communities having a maximum time allowable to minimise disruption.

[70] This matter has been canvassed at length by Deputy President Smith in the Australian Education Union v Victoria case and I intend to make order in similar terms.

[71] As a result orders will issue as sought.

COMMISSIONER

Appearances:

Mr J Spriggs for Independent Education Union of Australia

Mr D Williams and Mr E Shorten from Minter Ellison for the Respondents.

Hearing details:

2015.

Brisbane:

6 and 10 August.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR570512>