Independent Education Union (South Australia) Incorporated v Immanuel College Incorporated

[2015] FWC 5952

[2015] FWC 5952

FAIR WORK COMMISSION

DECISION

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

Independent Education Union (South Australia) Incorporated
v
Immanuel College Incorporated
(B2015/1132)

COMMISSIONER WILSON ADELAIDE, 27 AUGUST 2015

Proposed protected action ballot of employees of Immanuel College Incorporated.

[1] This is an application for a protected action ballot order by the Independent Education Union - South Australia (the “IEU”) in relation to certain employees of Immanuel College Incorporated.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[3] The Applicant seeks to ballot employees of Immanuel College Incorporated who will be covered by the proposed enterprise agreement and whom the IEU is their bargaining representative.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(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, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

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

(c) the date by which voting in the protected action ballot closes;

(d) 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 FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this matter, the IEU’s application contains evidence of the steps taken by them to bargain and the progress of bargaining to date. Nothing within that material causes me to form a view that the IEU is not genuinely trying to reach an agreement with the employer. Further, I note that Immanuel College Incorporated has not indicated opposition to the order being made.

[7] Pursuant to s.443(5) of the Act, if the Commission is satisfied that there are exceptional circumstances justifying the period of written notice to be longer than three working days, the protected action ballot order may specify a period of up to seven working days.

[8] In this regard I note that the IEU has sought an extended period of five working days written notice for the taking of industrial action as contemplated by s.443(5) of the Act. Correspondence from the parties suggests that such a time period has been agreed amongst them, and indeed that the proposal for the extended period of notice of industrial action formed part of Immanuel College Incorporated’s decision not to oppose the application. The College have indicated a concern about the possible implications for students of the College as one reason for their position. On the basis of the material before me, I am satisfied that exceptional circumstances exist justifying the period of written notice to be longer than three working days.

[9] Having decided all of these matters and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the IEU.

COMMISSIONER

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