Fair Work Act 2009

s.418 - Industrial action

Craigslea Kindergarten & Preschool Association (Inc.) t/as Craigslea Kindergarten

Emma Boyd, Sally Riley, Leah Saul, Toni McNamara, Bev O'Loughlin, Annie Baartz, Melissa Rotolone

Alleged industrial action at Craigslea Kindergarten & Preschool Association Inc - alleged unprotected industrial action - interim order made under s.420

• [1] On Saturday, 30 August 2025, Craigslea Kindergarten & Preschool Association Inc. (Craigslea Kindergarten) applied under section 418 of the Fair Work Act 2009 (the Act) for orders that unprotected industrial action stop, not occur and not be organised. The application was directed at certain conduct of seven employees of Craigslea Kindergarten in connection with a dispute over the commencement of new management. The employer and employees are covered by the Craigslea Kindergarten Early Childhood Enterprise Agreement 2019 (the Agreement). The Agreement nominally expired on 31 December 2021.

• [2] The matter was listed for hearing on Saturday, 30 August 2025 at 3.00pm (Sydney time). Mr Thomas D'Souza appeared on behalf of Craigslea Kindergarten and Ms Emma Boyd appeared on her own behalf. The other six employees named in the application did not appear. There is some doubt about whether each of the other six employees have been served with the application and draft orders. Ms Boyd advised that at least some were aware of the matter and had chosen not to attend due to other commitments. One of the employees was unable to be sent communication from the Commission because of an incorrect email address.

• [3] There appears to have been an escalating dispute between members of the Craigslea Kindergarten management committee and employees over the past few months. The dispute has led to the stand down of Ms Boyd and her separate application to the Commission for orders to stop bullying at work.

• [4] The current position is that employees within the group of seven named employees are preventing Mr D'Souza (who is a member of the management committee) from accessing the building in which the business operates and limiting his access to online systems. Late on 29 August 2025, two of the affected employees, Ms Toni McNamara and Ms Sally Riley, presented medical certificates covering a 2-week period of which Monday, 1 September 2025 is the first working day they will be absent. One of those employees holds approval to act as Nominated Supervisor for the kindergarten. Her absence, together with the absence of Ms Boyd while stood down, is said to have the practical effect that Craigslea Kindergarten will not be able to operate for the period of absence. That appears to be so because Ms Boyd is the only other Nominated Supervisor for the centre. It was stated at the hearing that one of the employees had written to parents of the kindergarten advising that the kindergarten would be closed from Monday without the approval of the management committee.

• [5] The submission is that Craigslea Kindergarten cannot operate or provide services to the families who rely on its services if it cannot access the building and its property inside.

• [6] Section 418 of the Act requires the Commission to make an order that industrial action stop, not occur or not be organised if satisfied that the relevant statutory conditions are met.

• [7] Section 420(1) provides that, as far as practicable, an application under section 418 must be determined within 2 days after the application is made. If the Commission is unable to determine the application within that period, it must make an interim order that the industrial action to which the application relates stop, not occur or not be organised.

• [8] In CEPU v Fredon Industries Pty Ltd t/a Fredon (footnotes omitted),[1] a Full Bench of the Commission considered the making of interim orders under section 420, as follows:

"[13] The circumstances in which the duty in s.420(2) to make interim orders was required to be discharged was considered by a Full Bench in McKewin v Lend Lease Project Management & Construction (Australia) Pty Ltd. Three relevant propositions may be gleaned from that decision:

(1) A conclusion by the Commission that it is unable to determine an application within the two-day period specified in s.420(1) is a condition precedent for the making of an interim order under s.420(2). "Absent such a conclusion, the Commission is under no duty, and has no power, to make an interim order."

(2) The requirements of procedural fairness apply to the making of an interim order under s.420(2), although depending on the circumstances the requirement to hear affected parties may be circumscribed by the time constraints imposed by s.420(1) and (2).

(3) A failure to list an application for s.418 orders for final hearing expeditiously after an interim order has been made under s.420(2) may make it difficult to conclude that the Commission's obligation in s.420(1) has been complied with.

[14] To these we would add a fourth proposition: the effect of s.420(3) is that the Commission must, prior to making an interim order under s.420(2), give consideration to whether the making of the interim order would be contrary to the public interest. A failure to consider the public interest in this way may result in an interim order being made contrary to the mandatory requirement in s.420(3)."

• [9] On the materials presently before the Commission, I am unable to fairly determine the application within the two-day period specified in s.420(1). I am not satisfied that all affected employees have been served with the application. Further, limited evidence has been produced by Craigslea Kindergarten in the time since application was made and it is clear that there are at least some documents in existence that will be material to any final determination of the application.

• [10] Although the time constraints imposed by s.420 can narrow the obligation to afford procedural fairness, in this instance I consider that procedural fairness is likely to be denied if the matter is determined before it is clear that employees have been served with the application and have had an opportunity to be heard.

• [11] This is a dispute between private interests with no apparent broader implications for the public interest. I am satisfied that it would not be contrary to the public interest to make an interim order under section 420 pending determination of the substantive application.

• [12] The matter will be listed for further hearing at 3.00pm on Monday, 1 September 2025.

• [13] Orders will issue separately under section 420(2) of the Act.

Mr Thomas D'Souza for the Craigslea Kindergarten and Preschool Association Inc.

No appearance for Sally Riley, Leah Saul, Toni McNamara, Bev O'Loughlin, Annie Baartz, Melissa Rotolone.

[1] [2016] FWCFB 2744.

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