Independent Education Union of Australia v Trustees of the Marist Brothers Ashgrove

[2015] FWC 6359

[2015] FWC 6359

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

Independent Education Union of Australia

v

Trustees of the Marist Brothers - Ashgrove; Roman Catholic Trust Corporation for the Diocese of Rockhampton T/A Diocesan Catholic Education Office; Trustees of the Edmund Rice Education Australia; Mt St Michael's College Limited; Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education Office; All Hallows’ School Limited; Roman Catholic Trust Corporation for the Diocese of Townsville T/A Townsville Catholic Education Office; St Ursula's College Limited; Roman Catholic Trust Corporation for the Diocese of Cairns T/A Catholic Education Services Cairns; Mt Alvernia College Limited; The Corporation of the Roman Catholic Diocese of Toowoomba T/A Toowoomba Catholic Education Office; St Ursula's College, Toowoomba; Lourdes Hill College; Brigidine College, Indooroopilly; and Loreto College Coorparoo

(B2015/1258, B2015/1259, B2015/1260, B2015/1261, B2015/1262, B2015/1263, B2015/1264, B2015/1265, B2015/1266, B2015/1267, B2015/1268, B2015/1269, B2015/1270, B2015/1271, B2015/1272)

COMMISSIONER BOOTH BRISBANE, 11 SEPTEMBER 2015

Application to extend the 30-day period in relation to the Catholic Schools.

[1] On 4 September 2015, Independent Education Union of Australia (IEUA) made an application under s.459(3) of the Fair Work Act 2009 (the Act) to extend the period in which certain industrial action is to commence for purposes of s.459(1)(d)(ii) of the Act in respect of the B2015/1258 to B2015/1272. The relevant employers are as per Schedule A attached to this Decision.

[2] Section 459 of the Act reads as follows:

459 Circumstances in which industrial action is authorised by protected action ballot

(1) Industrial action by employees is authorised by a protected action ballot if:

(a) the action was the subject of the ballot; and

(b) at least 50% of the employees on the roll of voters for the ballot voted in the ballot; and

(c) more than 50% of the valid votes were votes approving the action; and

(d) the action commences:

(i) during the 30-day period starting on the date of the declaration of the results of the ballot; or

(ii) if FWC has extended that period under subsection (3)—during the extended period.

Note: Under Division 2, industrial action by employees for a proposed enterprise agreement (other than employee response action) is not protected industrial action unless it has been authorised in advance by a protected action ballot.

(2) If:

(a) the nature of the proposed industrial action specified in the question or questions put to the employees in the protected action ballot included periods of industrial action of a particular duration; and

(b) the question or questions did not specify that consecutive periods of that industrial action may be organised or engaged in;

then only the first period in a series of consecutive periods of that industrial action is the subject of the ballot for the purposes of paragraph (1)(a).

(3) FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to FWC for the period to be extended; and

(b) the period has not previously been extended.

[3] Section 459(3) of the Act vests a discretion in the Fair Work Commission in respect of whether to grant such an application upon the two factual preconditions (at s.459(3)(a) and 459(3)(b) of the Act) being made out.

That is, FWC may extend the 30-day period where an applicant for the protected action ballot order applies to FWC for the period to be extended; and the period has not previously been extended.

[4] Both those criteria have been met in this application.

[5] The employers provided a written response on 8 September 2015 to the Application and indicated that it neither supported or opposed the applications. It is noted however:

“In view of the IEUA submission that protected industrial action cannot be taken during school vacation period (14 days), employers request that Commissioner Booth give consideration to an extension period of 14 days only.”

[6] In response the IEUA submitted it would be unreasonable to impose a circumstance whereby IEUA members were constrained by the 14 day extension or limited in relation to the possible timing of protected action. It is noted that the 15th and 16th September 2015 have been scheduled for bargaining as has the 13th and 14th of October 2015. Limitations on the extension would not assist the bargaining process.

[7] Neither party sought a hearing in relation to this application. I have made a determination on the papers.

Consideration

[8] The IEUA has sought an extension of 30 days given certain facts about the taking on protected industrial action at this time of year.

[9] It noted two particular limitations on the taking of industrial action: firstly the protected industrial action cannot be taken during a school vacation period and that there is a requirement as a result of the orders to give 5 clear working days’ notice of any protected industrial action. Both of these factors provide limitations on when industrial action can be taken.

[10] As the employers neither supported nor opposed the applications, and given the limitations on taking industrial action at this time, there does not appear to me, to be any evidence before me that would dissuade me from exercising my discretion in favour of the IEUA for the 30 day period allowed for under the Act.

[11] I order that the 30 day period referred to in s.459(1)(d)(i) of the Act be extended by a further 30 days.

[12] Orders to that effect will issue simultaneously with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

<Price code A, PR571886>