Independent Education Union of AustraliavThe Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education Office

[2012] FWA 6434

FAIR WORK AUSTRALIA

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
(B2012/1427). (B2012/1432)

COMMISSIONER SIMPSON

BRISBANE, 30 JULY 2012

Proposed protected action ballot by employees of The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education Office.

[1] This matter involves two applications by the Independent Education Union of Australia (IEUA) for protected action ballot orders in relation to employees of The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education Office (the Respondent). I intend to deal with these applications at the same time in accordance with s.442(a)(i) as they relate to industrial action by employees of the same employer. The applications are made pursuant to s.437 of the Fair Work Act 2009 (the Act). The applications were lodged on 26 and 27 July 2012.

[2] The Respondent on 30 July 2012 advised through their representative that they did not oppose the making of these orders.

[3] In the circumstances, I have decided to determine these matters on the papers.

[4] Section 443 (1) of the Act states:

“(1) FWA 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) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”

[5] The IEUA has provided an affidavit of Dr Paul Giles addressing those matters in s.443 (1) of the Act.

[6] I am satisfied that the requirements of the Act including in s.443(1) have been met and that the orders must be made. The Orders PR527197 and PR527269 will be issued concurrently with this decision.

[7] The Respondent made an application in the course of the hearing at Fair Work Australia (FWA) on 24 July 2012 of separate protected action ballot applications brought by the IEUA and affecting the Respondent for the inclusion in those orders of a requirement pursuant to s.443(5) that the period of written notice prior to taking the action specified in the ballot questions should be 7 days rather than the standard requirement for 3 days notice as specified in s.414(1).

[8] The IEUA adopted the position of leaving that question to the discretion of FWA for determination. Both the IEUA and the Respondent requested that FWA regard their respective submissions for the purpose of the matters heard and determined on 24 July 2012 to also be regarded as their respective positions for the purposes of these applications. I have agreed to that approach.

[9] In my determination of the prior applications on 24 July 2012 I specified 5 working days as the period of written notice of industrial action and gave my reason for doing so. I adopt the reasons given in those matters to also specify 5 working days as the period of written notice of industrial action in these matters.

COMMISSIONER

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CaseChat Overview and Summary

The Independent Education Union of Australia (IEUA) filed two applications with Fair Work Australia (FWA) for protected action ballot orders concerning employees of The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane, trading as the Brisbane Catholic Education Office (Respondent). The dispute involved the employees' desire to take industrial action, and the applications were made under section 437 of the Fair Work Act 2009. The Respondent did not oppose the making of these orders, leading to the Commissioner's decision to determine the matters on the papers.

The legal issues before the court centred on whether the requirements of section 443(1) of the Fair Work Act 2009 were met, specifically whether the IEUA had genuinely been trying to reach an agreement with the employer. Additionally, the court had to decide on the period of written notice prior to taking industrial action, as requested by the Respondent, which was initially set at 7 days instead of the standard 3 days. The IEUA left the decision to the discretion of FWA, and both parties requested that their submissions from an earlier hearing on 24 July 2012 be considered in these applications.

In its decision, the court found that the requirements of the Act, including section 443(1), had been met, and the orders must be made. The Commissioner adopted the reasoning from the earlier determination on 24 July 2012 and specified 5 working days as the period of written notice of industrial action. This decision was based on the discretion exercised by the Commissioner in the previous matter, which balanced the need for notice with the urgency of the industrial action.

The final orders, PR527197 and PR527269, were issued concurrently with the decision, specifying 5 working days as the period of written notice of industrial action for the employees of the Brisbane Catholic Education Office.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established