1
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Independent Education Union of Australia
v
Stuartholme School
(B2023/608)
DEPUTY PRESIDENT HAMPTON ADELAIDE, 22 JUNE 2023
Proposed protected action ballot of employees of Stuartholme School
[1] This is an application by the Independent Education Union of Australia (IEU) made
under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order (PABO) in
relation to certain employees of Stuartholme School (Stuartholme).
[2] This application is being considered by the Commission in conjunction with 14 other
PABO applications that also relate to various Catholic Diocesan Schools in Queensland.
[3] The application as subsequently amended to modify the proposed ballot questions was
not opposed by Stuartholme.
[4] The proposed agreement in is not a greenfields agreement, or a multi-enterprise
agreement that is a cooperative workplace agreement, and this application is permitted.1 The
IEU is proposing an enterprise agreement in consequence of a single interest employer
authorisation2 issued by the Commission on 14 November 2022 under s.248 of the Act as it
stood at that time. This authorisation, and the capacity to pursue single enterprise agreements
based upon that authority, has been preserved notwithstanding recent amendments to the Act.3
There is a dispute about the coverage of the agreement, and in particular, the potential exclusion
of some instructional services staff; however, this is itself a matter for bargaining.
[5] There has also been a notification time for the proposed agreement, the present
enterprise agreements are within 30 days of their nominal expiry dates, and the application and
accompanying documentation is in order. The application and proposed order have also been
provided by the IEU to Stuartholme School and the proposed ballot agent. This meets various
requirements4 for the making of a PABO.
[6] The application was supported by a statutory declaration of Paul Giles, Assistant
Secretary/Treasurer of the IEU- Queensland and Norther Territory Branch.
[7] In the circumstances, I have decided to determine the matter on the papers without
holding a hearing. I have today made the proposed PABO, largely in the terms as sought.
[2023] FWC 1482
DECISION
AUSTRALIA FairWork Commission
[2023] FWC 1482
2
[8] The application proposes to utilise a non-eligible protected action ballot agent.
[9] Section 444 of the Act now relevantly provides as follows:
“444 Ballot agent and independent advisor
… …
Protected action ballot agent
(1A) The FWC must, in accordance with subsections (1B) to (1D) of this section,
decide the person or entity that is to be the protected action ballot agent for the
protected action ballot.
(1B) The person or entity must be the person or entity specified in the application for
the protected action ballot order as the person or entity the applicant wishes to
be the protected action ballot agent, unless:
(a) the person or entity specified in the application does not meet the
requirements of subsection (1C) (unless subsection (1D) applies); or
(b) the FWC is satisfied that there are exceptional circumstances that justify
another person or entity being the protected action ballot agent.
(1C) The person or entity must be an eligible protected action ballot agent.
(1D) Subsection (1C) does not apply in relation to a person if the FWC is satisfied
that:
(a) there are exceptional circumstances that justify the ballot not being
conducted by an eligible protected action ballot agent; and
(b) the person is a fit and proper person to conduct the ballot; and
(c) any other requirements prescribed by the regulations are met.
Note: Other than the Australian Electoral Commission, an entity that is not a
person cannot be the protected action ballot agent for a protected action
ballot.”
[10] At the time of making this application, there were 2 eligible protected action ballot
agents approved by the Commission5 beyond the Australian Electoral Commission, which is
authorised directly by the Act. This occurred only some hours prior to the application, and it is
reasonable to presume that the IEU was not aware of this development. In any event, the IEU
propose that RMK Investments Pty Ltd as Trustee for Kidd Family Trust T/A Australian
Election Company (Australian Election Company) be the ballot agent and rely upon the
exceptional circumstances contemplated in s.444(1D)(a). The Australian Election Company has
agreed to be the ballot agent, and this has been confirmed in evidence that is before the
Commission.
[11] The operation of these provisions and the context for the assessment of exceptional
circumstances has been discussed in a number of decisions.6
[2023] FWC 1482
3
[12] I was satisfied that there were exceptional circumstances that justified the approval of
the non-eligible ballot agent proposed in this matter. Those circumstances included the nature
of the workforce, the fact that multiple associated ballots are being conducted in the same period
relating to the same proposed enterprise agreements, and the efficiency and effectiveness of
electronic voting in that particular context.
[13] The proposed protected action ballot agent must also meet the requirements of
s.444(1D)((b) and (c) of the Act. This involves an assessment of whether the proposed protected
action ballot agent is a fit and proper person to conduct the ballot and whether they also meet
the requirements established by the regulations, and in particular, reg 3.11.
[14] The Commission has found on multiple occasions that the Australian Election Company
is a fit and proper person to act as a ballot agent.7 The material8 before the Commission also
confirms that this remains the case and that the Australian Election Company complies with all
of these requirements. This material included details about the nature of the information and
other systems to be used for the ballot, compliance with the Privacy Act and related principles,
and steps that will be taken to ensure that the ballot is conducted fairly, democratically, and
expeditiously by fit and proper individuals.
[15] I have approved the Australian Election Company to act as the protected action ballot
agent in this matter under s.444(1D) of the Act.
[16] No independent advisor for the ballot was proposed or appointed.
[17] For the purposes of s.443(3)(c) and s.448A(2) of the Act, I have set the ballot period at
21 working days by reference to the date of effect of the PABO (22 June 2023). This reflects,
in practice, the ballot period in the proposed orders.
[18] On the basis of the material before me, I was satisfied that the IEU has been, and is,
genuinely trying to reach an agreement with Stuartholme. This meets the requirements of
s.443(1)(b) of the Act. I was also satisfied that all of the other statutory requirements for the
issuing of the PABO in this matter were met. Under s.443 of the Act, the Commission was then
required to issue the PABO.
[19] An order has been separately issued in PR763451.
[20] This matter will be assigned to another Member of the Commission to conduct the
s.448A conference and this Member will issue the Order requiring attendance at the conference.
This will involve all bargaining representatives for the proposed enterprise agreement(s). It is
likely that Directions will also be issued to ensure that the parties attend the conference ready
to conduct meaningful negotiations.
https://www.fwc.gov.au/documents/awardsandorders/pdf/pr763451.pdf
[2023] FWC 1482
4
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR763450
1 Act s 437(2).
2 [2022] FWC 3011.
3 Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 – schedule 1 Transitional provisions including at
s.78A.
4 Act ss. 437, 438, 440.
5 Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400; TrueVote Pty Ltd [2023] FWC 1446.
6 AMWU v Otis Elevator Company Pty Limited T/A Otis Elevator Company [2023] FWC 1337; AMWU v UGL Rail Services
Pty Limited [2023] FWC 1365 (AMWU v UGL); CEPU v UGL Rail Services Pty Limited [2023] FWC 1381 (CEPU v UGL);
AMOU v Solstad Australia Pty Ltd [2023] FWC 1389.
7 Including Australian Education Union v The Secretary to the Department of Education and Training of the State [2021]
FWC 5212; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of
Australia v Electricity Networks Corporation T/A Western Power [2021] FWC 1944; CPSU, the Community and Public Sector
Union v Commonwealth of Australia (acting through and represented by the Department of Defence [2015] FWC 1700.
8 Including a Declaration by Mr Wade Hadley – Manager of the Australian Election Company.
THE FAIR WORK COMMISSION AUSTRALLA THE SEAL
https://www.fwc.gov.au/documents/decisionssigned/html/2022fwc3011.htm
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1400.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1446.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1337.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1365.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1381.pdf
https://www.fwc.gov.au/documents/decisionssigned/pdf/2023fwc1389.pdf
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc5212.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc5212.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc1944.htm
https://www.fwc.gov.au/documents/decisionssigned/html/2015fwc1700.htm
