Independent Education Union Victoria Tasmania v Xavier College Summary

[2023] FWC 2814

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Independent Education Union Victoria Tasmania
v

Xavier College

(B2023/1165)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 27 OCTOBER 2023

Proposed protected action ballot of employees of Xavier College

This is an application by the Independent Education Union Victoria Tasmania (IEU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Xavier College (Xavier College or Employer).

On 26 October 2023, the Commission was advised that Xavier College, in effect, did not object to the Application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Andrew Hyde on behalf of the IEU, setting out the steps taken by the IEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Xavier College, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 8 December 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR767639.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Independent Education Union Victoria Tasmania (IEU) applied for a protected action ballot order against Xavier College under section 437 of the Fair Work Act 2009. The IEU sought to conduct a ballot for employees of Xavier College regarding a proposed enterprise agreement. Xavier College did not object to the application, and the matter was decided on the papers without a hearing. The Deputy President was satisfied that the IEU had genuinely attempted to reach an agreement with the employer and that all statutory requirements for a protected action ballot had been met.

The primary legal issue before the Deputy President was whether the IEU had fulfilled the prerequisites for a protected action ballot as stipulated in section 443(1) of the Fair Work Act. This included verifying that the IEU had taken necessary steps in bargaining with Xavier College and had genuinely tried to reach an agreement. Additionally, the Deputy President had to determine the appropriate closing date for the ballot to ensure it was conducted within the required timeframe by the Australian Electoral Commission.

In determining the application, the Deputy President reviewed the declaration submitted by Andrew Hyde on behalf of the IEU, which outlined the union's bargaining efforts and its genuine attempts to reach an agreement with Xavier College. The declaration satisfied the Deputy President that the IEU had met all necessary conditions for the ballot. The Deputy President further set the closing date for the ballot as 8 December 2023, allowing sufficient time for the Australian Electoral Commission to conduct the voting process. The matter will subsequently proceed to a compulsory conciliation conference, as ordered separately, to facilitate further negotiations between the parties involved.

The Deputy President issued an order approving the IEU's application for a protected action ballot, with voting to close on 8 December 2023. This decision ensures that the ballot process will be conducted in accordance with the statutory requirements of the Fair Work Act.

Independent Education Union Victoria Tasmania v Xavier College

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established