Independent Education Union (South Australia) Incorporated

[2015] FWC 6729

[2015] FWC 6729

FAIR WORK COMMISSION

DECISION

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

Independent Education Union (South Australia) Incorporated
(B2015/1132)

COMMISSIONER WILSON MELBOURNE, 30 SEPTEMBER 2015

Application by the Independent Education Union (South Australia) Inc.

[1] This matter concerns an application by the Independent Education Union (South Australia) Inc (IEU) in relation to an earlier Protected Action Ballot Order made by me on 27 August 2015 in respect of employees of Immanuel College Inc.    1

[2] The Protected Action Ballot Order made by me on 27 August 2015 required the IEU to hold a protected action ballot of employees of Immanuel College with the ballot itself to be conducted by the Australian Electoral Commission. Being satisfied of the relevant criteria under the Fair Work Act 2009 (the Act), the Order required a ballot to be conducted by postal ballot with the date on which the ballot would close originally specified as 11 September 2015.

[3] The Order made by the Commission was with the consent of Immanuel College and specified the Australian Electoral Commission (AEC) as the protected action ballot agent.

[4] Item 7 of the Order required a single question to be put to employees. For the purposes of brevity, that question is not referred to in this decision, however it consists of a preamble of whether voters authorised industrial action against Immanuel College involving any or all of six specified forms of action. The question set out in the Order invites those being balloted to vote either “yes” or “no” to a single rolled-up question comprising the six elements referred to.

[5] Following the issuing of the Order the AEC made contact with my Chambers on 1 September 2015 indicating that the timeframe referred to in the Order was too compressed for it to be complied with by the AEC. The relevant officer identified to my Chambers that a variation should be made to the order so that it closed on 22 September 2015, instead of 11 September. Following receipt of the AEC’s correspondence, on 3 September 2015, my Chambers contacted the parties to this matter seeking their views about the AEC’s proposal. With no objection having been made to the proposed amendment, item 5 of the original Order was amended by me to provide that the date on which the ballot would close is 22 September 2015. 2

[6] Following these circumstances, on 23 September 2015, Mr Seidel for the IEU wrote to my Chambers indicating a concern about the form of the ballot that had been put to employees by the AEC. His concern was formed when he attended the College for the counting of the vote.

[7] In particular, he expressed the concern that whereas it was the intention of the IEU that there would be a single rolled-up question, the ballot as apparently put to employees referred to 6 separate questions. In effect, instead of voters being asked to vote either “yes” or “no” to the prospect of industrial action comprising six different possibilities, voters were asked to approve or not six different types of proposed industrial action.

[8] In the course of making contact with the Commission about this matter, the IEU identified that the ballot had been declared on 22 September 2015, with the votes cast having been counted on the same day.

[9] Following this situation, the IEU has now made application to the Commission to the effect that;

“… the reports produced by AEC and FWC for publication record the result as a valid majority voting in favour of one single question with six parts rather than as six separate questions”.

[10] A hearing was convened by me on 29 September 2015. The AEC was served with a copy of the Notice of Listing, however a representative of the AEC did not attend the hearing.

[11] A copy of the ballot provided to voters was not provided to the Commission.

[12] On 30 September 2015 the Commission was provided with the AEC’s declaration of the result of the ballot. That report confirms those balloted were invited to vote separately on six different types of proposed industrial action.

[13] An order by the Fair Work Commission for a protected action ballot order is made pursuant to s.443 of the Act, with that section requiring that if the Commission is satisfied of certain criteria within the section and elsewhere, an order must be made, which in turn must specify certain things, including the identity of the protected action ballot agent and the question or questions to be put to employees who are to be balloted, including the nature of the proposed industrial action.

[14] Section 445 provides that as soon as practicable after making a protected action ballot order, the Commission must give a copy of the order to each applicant; the employer of the employees who are to be balloted; and the protected action ballot agent. Section 447 enables the Commission to vary an order, upon application by the applicant for the protected action ballot order, and for the protected action ballot agent to apply to the Commission to vary the order to change the date by which voting closes. In both cases such applications must be made at any time prior to the date by which voting in protected action ballot order closes.

[15] Further, s.448 provides that an Applicant to a protected action ballot order may apply to the Commission at any time before voting closes to revoke the order with the Commission being obliged to revoke the order if the application is so made.

[16] Once the ballot is closed, s.457(1) requires a protection action ballot agent to make a written declaration of the result of the ballot and to inform certain persons of the ballot result, including the Applicant, the employer and the Commission. The same section requires that the Commission must then publish the results of the ballot on its website or by any other means that the Commission considers appropriate, as soon as practicable after it has been informed of the results of the ballot.

[17] Section 458 requires that in the event the AEC is the protected action ballot agent and it receives any complaints or becomes aware of any irregularities in relation to the conduct of the ballot the AEC must prepare a written report about the conduct of the ballot and give it to the Fair Work Commission.

[18] These matters of legislation are referred to in order to highlight that the Fair Work Commission’s powers in respect of protected action ballot orders are confined to matters associated with the making and determination of an application; the consequential making of an order; and, in due course, reporting upon the conduct and outcome of the ballot. In turn, protected action ballot agents including the AEC, have certain obligations cast upon them by the legislation, with those obligations including the compilation of a voter roll; conduct of the ballot; and reporting on the outcome of the ballot.

[19] In the course of the hearing of the IEU application, the union’s representative conceded that there was not a legislative base for the Commission to make an order that would purportedly modify the report made by the AEC to the Commission following its declaration of the results of the ballot pursuant to s.457(1).

[20] Having given consideration to the intention of the IEU at the time it made its application for a protected action ballot order, as well as the intention of the Commission in issuing the subsequent order, it is apparent that if the ballot as put to voters departed from the order made in the way as complained of by the IEU, such situation would not be conformity with the Commission’s Order. The AEC’s report to the Commission on the ballot pursuant to s.457 of the Act appears to confirm the departure complained of by the IEU.

[21] However, for the reason that there does not appear to be a provision within the Act for the Commission to modify in some way the AEC’s report on the declaration of the ballot, the Commission must refuse the IEU’s application.

[22] While it is regrettable that, for reasons unknown to the Commission, the AEC appears not to have followed the Order made by the Commission, and to consequently not have advised either the IEU or the Commission that it was proposing to vary the ballot in the way that appears to have occurred, the Commission does not see at this time a means by which the circumstance may be corrected in the jurisdiction available to the Fair Work Commission.

[23] As result, the application by the IEU must be dismissed.

[24] In the course of the hearing of this matter, the representative for Immanuel College indicated to the Commission that she believed a protected action ballot order in any case was now, or would soon be, redundant for the reason that agreement in principle for an enterprise agreement had been reached between the College and the IEU. If that is the case, then clearly the parties are to be congratulated for having achieved an agreement, and the Immanuel College representative may will be correct in terms of the practical effect of the Order and the subsequent ballot. However, the Order having been issued and been the subject of a ballot, which apparently has now been declared, the protections to employees afforded by the Order and ballot remain available to them, to the extent permitted by the Act.

[25] In the circumstances, I regard the IEU as having complained of the conduct of the protected action ballot. I direct that the IEU make that complaint to the AEC, which is to prepare a written report to the Commission on the conduct of the protected action ballot, pursuant to s.458 of the Act.

COMMISSIONER

Appearances:

Mr Bernardi, for the Independent Education Union (South Australia) Inc.

Ms Albertini and Mr Anderson, The Association of Independent Schools of South Australia, for Immanuel College

Hearing details:

2015.

Melbourne, Adelaide (video hearing).

September 29.

 1   See Print PR 571312

 2   See Print PR 571561

Printed by authority of the Commonwealth Government Printer

<Price code C, PR572425>