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B2015/773, Transcript of Proceedings [2015] FWCTrans 479 (19 August 2015)

TRANSCRIPT OF PROCEEDINGS
Fair Work Act 2009 1052277



COMMISSIONER BOOTH

B2015/773

s.437 - Application for a protected action ballot order

Independent Education Union of Australia

and

The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane T/A Brisbane Catholic Education Office

(B2015/773, B2015/774, B2015/775, B2015/776, B2015/777, B2015/778, B2015/779, B2015/780, B2015/781, B2015/782, B2015/783, B2015/784, B2015/785, B2015/786, B2015/787, B2015/788, B2015/789, B2015/790, B2015/791, B2015/792, B2015/793, B2015/794, B2015/795, B2015/796, B2015/797, B2015/798, B2015/799, B2015/800, B2015/801, B2015/802, B2015/803, B2015/804, B2015/805, B2015/806, B2015/807, B2015/808, B2015/809, B2015/810, B2015/811, B2015/812, B2015,813, B2015/814, B2015/815, B2015/816, B2015/817, B2015/818, B2015/819, B2015/820, B2015/821, B2015/822, B2015/823, B2015/824, B2015/825, B2015/826, B2015/827, B2015/828, B2015/829, B2015/830, B2015/831, B2015/832, B2015/833, B2015/834, B2015/835, B2015/836, B2015/837, B2015/838, B2015/839, B2015/840, B2015/841, B2015/842, B2015/843, B2015/844, B2015/845, B2015/846, B2015/847, B2015/848, B2015/849, B2015/850, B2015/851, B2015/852, B2015/853, B2015/854, B2015/855, B2015/856, B2015/857, B2015/858, B2015/859, B2015/860, B2015/861, B2015/862, B2015/863, B2015/864, B2015/865, B2015/866, B2015/867, B2015/868, B2015/869, B2015/870, B2015/871, B2015/872, B2015/873, B2015/874, B2015/875, B2015/876, B2015/877, B2015/878, B2015/879, B2015/880, B2015/881, B2015/882, B2015/883, B2015/884, B2015/885, B2015/886, B2015/887, B2015/888, B2015/889, B2015/890, B2015/891, B2015/892, B2015/893, B2015/894, B2015/895, B2015/896, B2015/897, B2015/898, B2015/899, B2015/900, B2015/901, B2015/902, B2015/903, B2015/904, B2015/905, B2015/906, B2015/907)

The Roman Catholic Trust Corporation for the Diocese of Rockhampton T/A Diocesan Catholic Education Office

(B2015/908, B2015/909, B2015/910, B2015/911, B2015/912, B2015/913, B2015/914, B2015/915, B2015/916, B2015/917, B2015/918, B2015/919, B2015/920, B2015/921, B2015/922, B2015/923, B2015/924, B2015/925, B2015/926, B2015/927, B2015/928, B2015/929, B2015/930, B2015/931, B2015/932, B2015/933, B2015/934, B2015/935, B2015/936, B2015/937, B2015/938, B2015/939, B2015/940, B2015/941, B2015/942, B2015/943, B2015/944)

The Roman Catholic Trust Corporation for the Diocese of Townsville T/A Townsville Catholic Education Office

(B2015/945, B2015/946, B2015/947, B2015/948, B2015/949, B2015/950, B2015/951, B2015/952, B2015/953, B2015/954, B2015/955, B2015/956, B2015/957, B2015/958, B2015/959, B2015/960, B2015/961, B2015/962, B2015/963, B2015/964, B2015/965, B2015/966, B2015/967, B2015/968, B2015/969, B2015/970)

The Roman Catholic Trust Corporation for the Diocese of Cairns T/A Catholic Education Services Cairns

(B2015/971, B2015/972, B2015/973, B2015/974 B2015/975, B2015/976, B2015/977, B2015/978, B2015/979, B2015/980, B2015/981, B2015/982, B2015/983, B2015/984, B2015/985, B2015/986, B2015/987, B2015/988, B2015/989, B2015/990, B2015/991, B2015/992, B2015/993, B2015/994, B2015/995, B2015/996)

Trustees of the Edmund Rice Education Australia

(B2015/997, B2015/998, , B2015/999, B2015/1000, B2015/1001, B2015/1002, B2015/1003, B2015/1004, B2015/1005, B2015/1006, B2015/1007, B2015/1008, B2015/1009, B2015/1010, B2015/1011, B2015/1012, B2015/1013, B2015/1014, B2015/1015, B2015/1016)

The Corporation of the Roman Catholic Diocese of Toowoomba

(B2015/1040, B2015/1041, B2015/1042, B2015/1043, B2015/1044, B2015/1045, B2015/1046, B2015/1047, B2015/1048, B2015/1049, B2015/1050, B2015/1051, B2015/1052, B2015/1053, B2015/1054, B2015/1055, B2015/1056, B2015/1057, B2015/1058, B2015/1059, B2015/1060, B2015/1061, B2015/1062, B2015/1063, B2015/1064, B2015/1065, B2015/1066, B2015/1067)

All Hallows School Limited T/A All Hallows School

(B2015/1068)

Brigidine College, Indooroopilly T/A Brigidine College

(B2015/1069)

Downlands College

(B2015/1070)

Iona College Limited

(B2015/1071)

Loreto College Coorparoo

(B2015/1072)

Lourdes Hill College

(B2015/1073)

Mount Alvernia College Limited

(B2015/1074)

Mt St Michael's College Limited

(B2015/1075)

Padua College Limited

(B2015/1076)

St Patrick's College Townsville Limited

(B2015/1077)

St Rita's College Limited

(B2015/1078)

St Ursula's College Toowoomba

(B2015/1079)

St Ursula's College Limited

(B2015/1080)

Stuartholme School

(B2015/1081)

Trustees of the Marist Brothers - Ashgrove T/A Marist College Ashgrove

(B2015/1082)

Villanova College Limited

(B2015/1083)

Brisbane

9.55 AM, MONDAY, 10 AUGUST 2015

Continued from 6/08/2015

PN1

THE COMMISSIONER: This is the Independent Education Union and the Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane trading as the Brisbane Catholic Education Office and others. This is an application for a protected action ballot orders brought by the Independent Education Union of Australia (Queensland and Northern Territory) Branch which I will describe as the IEUA or the union.

PN2

The IEUA is entitled to represent the industrial interests of employees in Catholic schools in Queensland. It submits that it has members at each of the schools, the subject of these applications and the respondents do not object. The orders are sought against 22 employers, being the Religious Institute Schools and five diocesan schools in Queensland.

PN3

The Religious Institute Schools employers are some of the Queensland s largest Catholic schools, such as All Hallows and Dowman s College. The five diocesan employers are geographically based in Brisbane, Cairns, Rockhampton, Toowoomba and Townsville. The 22 employing authorities employ staff across 298 schools. The Queensland Catholic Education Commission (QCEC) coordinates across these varying employing authorities.

PN4

In 2012, and again in 2015, the QCEC obtained a single interest employer ministerial declaration and authorisation which permits the various employing authorities to bargain together an enterprise agreement. On 27 February 2015, the QCEC caused notices of employment representation rights to be sent to each of the 22 employing authorities to their employees.

PN5

Bargaining, formally commenced on 31 March 2015 and continued through July 2015. The employers are presently negotiating for two agreements substantially in the same terms as the two current agreements. The union seeks 22 separate agreements, one for each employer. That was also the union s position in the previous bargaining round. For example, see the Stuartholme School appeal at paragraph two.

PN6

Mr Hayes, the Assistant Secretary, of the union in evidence noted. This issue of scope of the agreement and ultimately the number of agreements was the subject of discussion at the meetings which occurred on 21 and 22 July, 2015. Mr Hayes statement details the steps taken by parties to date. He submitted at paragraph 43. It is the opinion of the IEUA representatives that stalemate has been reached in the negotiations. An obvious example is the quantum of wage increase. In addition, there are other issues where substantial argument has occurred and that resolution is not obvious.

PN7

At paragraph 53, Mr Hayes deposes as to the nature of the applications made and states - The IEUA has contacted members in schools and asked members whether they wished to participate in a protected action ballot. Applications for the protected action ballot have been filed for the Catholic schools where members identified a desire to participate in such a ballot.

PN8

This has resulted in the present separate ballot applications on the school by school basis. Each of the Religious Institute Schools is the subject of the application. Separate applications are brought for most but not every school in each diocese. For example, in Townsville, 26 ballot orders are sought for the 26 of the 28 schools under that employing authority. See Mr Whitehouse s statement at paragraph 39.

PN9

It is likely, though not the subject of evidence, that this is an example of two schools that did not identify a desire to participate in the ballot. As I understand it, there are 272 applications. All 17 religious institutes are covered leaving 235 applications covering diocesan schools. Each application is school-based. In the bargaining round in 2009, the union did not seek school-based orders but sought and obtained separate ballot orders for each of its members grouped as teachers on one hand, and non-teachers on the other.

PN10

Richards SDP issued a total of 37 protected action ballot orders in regard to the 22 employing authorities. I quote the full text of paragraph 26 of the Full Bench s decision in the Stuartholme appeal.

PN11

As we indicated earlier the appeals of the decisions of the 18 January 2010 do not strike that the decision to make the protected action ballot orders. In case we re wrong in that view it is important for us to indicate that. For the reasons we have given in relation to the appeals against the decision of 10 January 2009, we would not grant permission to appeal against the decision of 18 January 2010.

PN12

In my view, the Full Bench indicated that Richard SDP s decision to 37 protected action ballot orders against the 22 employers would not have been the subject of a successful appeal.

PN13

I turn now to the parties positions. The union submits that the requirements of section 437 are satisfied and the ballot orders should issue. The employers object to the granting of the applications, arguing the PAB orders must allow all employees who would be covered by the relevant proposed enterprise agreement to be balloted and it is impermissible to issue the orders on a school by school basis.

PN14

The law - section 437 provides relevantly as follows. Subsection 1 provides who may apply for a protected action ballot order. A bargaining representative of an employee who will be covered by a proposed enterprise agreement may apply to the FWC for a protection action ballot order requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

PN15

Subsection 3 details the matters to be specified in the application. The application must specify, (a) the group of employees who are to be balloted; and (b) the question or questions to be put to the employees who are balloted, including the nature of the proposed industrial action.

PN16

Subsection 5 is a limiting provision. It provides - A group of employees specified under paragraph 3(a) is taken to include only employees who, (a) will be covered by the proposed enterprise agreement and (b) either - (1) are represented by a bargaining representative who is an application for the protection action ballot order; or (2) are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

PN17

Turning to the applicant s submissions. The union seeks the total of 272 PAB orders, each of which in drafts attached to the applications state in the following terms the group or groups of employees to be balloted. The group of employees to be balloted are those employees of the named employing authority who are employed at the named school, whose administrative address is the address, who are members of and entitled to be industrially represented by the Independent Education Union of Australia (Queensland and Northern Territory Branch) and who would be subject to the proposed enterprise agreement. Mr Spriggs submits that this formula satisfies the requirements of section 437(3)(a).

PN18

The draft orders each state the questions to be put in identical terms, including the nature of the proposed industrial action in satisfaction of 437(3)(b). Each application proposed the ballot to be conducted by the Australian Electoral Commission.

PN19

I turn now to the employers position. The employers object to the applications. Mr Williams summarised the argument as follows at paragraph 49 of his written submissions. An application for a PAB must be related to a proposed enterprise agreement. (b) In this case, the only proposed enterprise agreement are two replacement agreements, one for the diocesan schools and one for the religious institute schools. (c) Therefore, an application for a PAB to be valid, it must relate to one of the two enterprise agreements.

PN20

It is implicit that the PAB must allow all employees who will be covered by the proposed enterprise agreement to participate in the ballot because otherwise the PAB regime would be subverted and employees would be disenfranchised in relation to an issue of grave significance to them. (e) Even if it could be said that there was a proposal for an individual enterprise agreement for each employer, which apart from the formal statement of position is inconsistent with the evidence, there is no proposal for an enterprise agreement covering only individual schools.

PN21

(f) It is impermissible to divide the employees who will be covered by a proposed agreement into sub-groups and conduct individual ballots within those sub-groups or within those sub-groups, that is what the applications are attempting to achieve.

PN22

And in oral submissions, Mr Williams also acknowledged that Stuartholme is authority for the position that scope can be a proper matter for bargaining under the Act. In the employers submission, while it may be possible for the PAB orders to be made against the 22 employers they cannot issue for individual schools in the absence of a proposal for an agreement limited to a coverage of that school.

PN23

Does then the absence of a proposal to limit the coverage to individual schools prohibit the granting of the orders? For the employers argument to succeed on this point, section 437 would have to be read as mandating that the scope of the proposed enterprise agreement is known at the time the PAB is filed. But after Stuartholme, it is clear that the nature of the ultimate enterprise agreement is a matter for bargaining. What does need to be certain because of section 437(5)(a) is which employees will be covered by the proposed agreement. On the evidence this is satisfied. The employers gave a notice of representation rights to its employees who are to be covered by the enterprise agreement.

PN24

I will return to this point with regard to the kindergarten teachers. The employers also argued the PAB orders on a school by school basis can only issue if there are a proposed enterprise agreements relevant to that basis. Mr Williams submitted that that might be achieved, for example, by a scope order or a majority support determination.

PN25

In my view, there is nothing in section 437 that would require this. The proposition seems to conflate the bargaining process of which the PAB orders might be part with the making of an enterprise agreement. The precise terms and scope must be known before the enterprise agreement can be put to vote but protected action can be about many matters, including as we know from Stuartholme, scope questions.

PN26

So, Stuartholme stands for the proposition that the exact nature of the proposed enterprise agreement that triggers section 437(1), does not need to be certain. Furthermore, there is no authority for the proposition that the ultimate agreement must be known or canvassed in bargaining for a PAB order to issue. There is no such restriction in section 437(1). In this case it is clear who might be covered and the absence of a proposal for an enterprise agreement limiting in coverage to individual schools does not prohibit the granting of the ballot.

PN27

I now turn to the employer s second argument that all employees who within the scope of the proposed enterprise agreement, as limited by subsection (5) must be included in the PAB orders. As mentioned earlier, the Full Bench, in Stuartholme upheld the decision at first instance to make separate protected action balance orders in terms of teaching and non-teaching staff without giving particular reasons.

PN28

The object of the division is to establish a fair, simple, democratic process to allow bargaining representatives to determine whether employees wish to engage, in particular, protected industrial action for the proposed enterprise agreement. Mr Williams particularly emphasises the democratic part of this process arguing that ballots that do not allow all employees to vote are undemocratic.

PN29

The union submits that its approach was consistent with the objective of democracy. It has limited its applications only to schools that want to be balloted and not to impose ballots on schools that did not want such a process.

PN30

The parties views might diverge but it is the matters set out in section 443 that determine whether the orders issue. Section 443 requires the Commission to make a PAB order in certain circumstances as follows. (1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement, if an application has been made under section 437, and FWC is satisfied that each applicant has been and is generally trying to reach agreement with the employer of the employees who are to be balloted. If these requirements are met the order must issue.

PN31

There s no dispute about paragraph (b). The only question then is whether the union s applications are valid. That, in turn, requires an answer as to whether a valid application can relate to employees who might be balloted, are fewer in number than who have received notices of representation rights. This is an interesting question because the application is in the hands of the union, whereas the notice is in the hands of the employers.

PN32

I conclude, when reading sections 437(1), (3) and (5) together the answer must be the applications are valid. Subsection (3) requires the application to specify the group or the group of employees who are to be balloted. It does not, for example, require that all employees who will be the subject of the agreement be balloted. These applications, school by school, identify the groups of employees to be balloted.

PN33

Subsection (5) a limiting provision contemplates that not all employees who will be covered are to be balloted. It is only those represented by the bargaining representative et cetera. That is, by force of the Act the employees to be balloted could well be a subset of those who must be given notices of representation rights. As to the section 443(1)(b), I am satisfied that each applicant has been and is genuinely trying to reach agreement with the employer of the employees who are balloted. That is not contested. But the section provides that satisfaction is not with all employees who will be covered by the agreement, only those that are balloted.

PN34

The requirements in section 443 are satisfied and the protected action ballot orders must issue. There are two other issues - kindergarten teachers. Although not part of the evidence or submissions of the applicant in oral submissions, Mr Spriggs sought to include kindergarten teachers who worked for the various named employers to be included in the ballots. The respondents resisted this. In their view, the negotiations did not run to kindergarten teachers, a view supported by the fact that notices of employment representation rights were not served on kindergarten teachers.

PN35

Mr Williams provided evidence from the Bar table that some kindergartens were not part of the same employer group. While it is clear that this is an important issue it has not been properly ventilated in these proceedings. However, it does need to be dealt with in order to provide certainty in relation to the nature of the ballots and those who are to be balloted.

PN36

In my view, without being served notice of an employee representation rights bargaining has not begun with these employees. As a result kindergarten teachers cannot be included in this application. Of course, that does not mean ultimately they will not be part of the agreement but that is not a matter for this application.

PN37

Notice period. Section 443(5) provides in exceptional circumstances that should there be an extension of the notice period of three days the IEUA proposes a period of five days noting that this has been ordered in other matters, including the Australian Education Union in Victoria. The employer seeks seven days, noting the significant issue for the school community and particularly the needs of families to seek urgent alternative arrangements and the public interest in schools and communities having a maximum time allowable to minimise disruption.

PN38

This matter has been canvassed at length by Smith DP in the Australian Education Union in Victoria case and I intend to make order in similar terms. As a result orders will issue as sought.

ADJOURNED INDEFINITELY [10.13 PM]


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