Catholic Church Endowment Society Inc v Independent Education Union (South Australia) Incorporated [2016] FWC 553 (27 January 2016) [2016] FWC 553 FAIR WORK COMMISSION DECISION Fair Work Act 2009 s.418 —Industrial action Catholic Church Endowment Society Inc T/A Catholic Education Office v Independent Education Union (South Australia) Incorporated (C2016/2383) COMMISSIONER PLATT ADELAIDE, 28 JANUARY 2016 Alleged industrial action at various South Australian Catholic Schools. [1] On 26 January 2016 the Catholic Education Office Inc T/A Catholic Education Office (Catholic Education Office) lodged an application pursuant to section 418 of the Fair Work Act 2009 (the Act). In this application the Catholic Education Office sought an order that industrial action being taken by members of the Independent Education Union South Australia Incorporated (IEU) stop. [2] The application was heard on 27 January 2016. The Catholic Education Office was represented by Ms Webb of counsel and the IEU by Mr Bernardi. [3] The background to the application is as follows. Employees in a number of South Australian Catholic Schools are covered by the South Australian Catholic Schools Enterprise Agreement 2013 (the Agreement). On 19 March 2015 the Fair Work Commission granted a single interest employer authorisation to cover 16 Catholic school employers. 1 A number of protected action ballot orders were issued by Senior Deputy President O’Callaghan on 10 November 2015. 2 The Australian Electoral Commission subsequently conducted a ballot in respect of each order. The results of the ballots were declared on 9 and 10 December 2015. On 21 and 22 January 2016 the IEU gave the Catholic Education Office a number of notices of industrial action proposed to be taken at the following schools - Kildare College, Cabra Dominican College, St Joseph’s Memorial, Blackfriars Priory School, Sacred Heart College and St Francis of Assisi School. The parts of the industrial action notices which give rise to this application states: • “a ban on taking of relief lessons” and • “a 30 minute work stoppage (including supervision duties).” [4] The Catholic Education Office relied principally on the submissions contained in the application. In summary the position of the CEO was that term “relief lesson” lacked clarity as the definition of this term which is found at clause G.3.11 of the Agreement is qualified by G.2.2.4 and G.3.14. It was submitted that this lack of clarity meant that the notice failed the requirements of s.414 (6) of the Act. [5] The Agreement states: “G.2.3.4 The undertaking of Relief Lessons shall not count towards the totals expressed in sub-clause G.2.3.2 where the relief is undertaking within the ‘relieving’ Teachers ’ normal amount of Student Contact Time … G.3.11 Relief lessons means lessons or activities undertaken by a Teacher in lieu of the Teacher usually assigned to that class or activity… G.3.14 Student Contact Time means the total amount of time from Timetabled Time that a Teacher is scheduled to exercise responsibilities (as listed in G.4.10) either with individual students or with specified groups of students. A Teacher who is assigned a less than full teaching load may be required by the employer to undertake other activities up to the usual amount of Student Contact Time .” [6] Further, the Catholic Education Office submitted that the proposed 30 minute ban on the performance of supervision duties was not covered by the scope of the ballot order and that the withdrawal of supervision duties was beyond the industrial action authorised by the protected action ballot. [7] The IEU contended that clauses G.2.3.4 and G.3.14 did not impact on the meaning of clause G.3.11 and that the meaning of the term “relief lessons” was clear, and that the protected action ballot order allowed for the stoppage of all work for a 30 minute period which included supervision duties. Findings [8] Section 418 states: “(1) If it appears to FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action: (a) is happening; or (b) is threatened, impending or probable; or (c) is being organised; FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order. Note: For interim orders, see section 420. (2) FWC may make the order: (a) on its own initiative; or (b) on application by either of the following: (i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action; (ii) an organisation of which a person referred to in subparagraph (i) is a member. (3) In making the order, FWC does not have to specify the particular industrial action. (4) If FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action: (a) some or all of which has not been taken before the beginning of the stop period specified in the order; or (b) which has not ended before the beginning of that stop period; or (c) beyond that stop period; FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.” [9] The key issue in this matter is whether the proposed industrial action in question is not protected action. [10] I am unable to accept that the definition of “relief lessons” contained in the Agreement is in any way qualified by clauses G.2.3.4 and G.3.14. In my view the meaning is the term “relief lessons” is easily understood by a review of clause G.3.11 and accords with the ordinary meaning of that term. I find that the notice requirements for industrial action required by s.414 (6) have been met in this circumstance. [11] I am also unable to accept that the proposal to refuse to undertake supervision duties for a period of 30 minutes is in excess of the industrial action authorised by the protected action ballot. [12] For these reasons I am unable to find that the action proposed to be taken is not protected and thus the requirements of s.418 (1) has not been met and the application must fail. COMMISSIONER Appearances : Ms Y Webb of counsel on behalf of the Catholic Education Office. Mr F Bernardi for the Independent Education Union. Hearing details: 27 January 2016 1 PR562160 . 2 PR573716 ; PR573715 ; PR57314; PR573713 ; PR573711 and PR573710 . Printed by authority of the Commonwealth Government Printer <Price code A, PR576493>