[2010] FWA 3454 |
|
DECISION |
Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.
Australian Capital Territory
v
Australian Education Union
(C2010/3522)
COMMISSIONER DEEGAN |
CANBERRA, 29 APRIL 2010 |
Application for order preventing industrial action
[1] This matter arises from an application for orders to stop industrial action, pursuant to s.418 of the Fair Work Act 2009 (“the Act”), filed on Friday 23 April 2010 by the ACT Government Solicitor on behalf of the Australian Capital Territory (“the ACT or the applicant”) in relation to industrial action allegedly being organised by the Australian Education Union (“AEU or the respondent”).
[2] Paragraph 4 of the application sets out the grounds upon which it is made as follows:
1. The Australian Education Union (`AEU') is covered by the ACT Department of Education And Training Teaching Staff Enterprise Agreement 2009-2011 ('the Enterprise Agreement') which is presently in force and does not expire until 30 June 2011.
2. The terms and conditions of the AEU's members employed in ACT public schools are subject to the Enterprise Agreement.
3. On 12 April 2010 the AEU made resolutions that its members will not participate in the administration or implementation of tests, known as NAPLAN tests, which are to be administered in ACT public schools on the days 11 to 13 May 2010.
4. On 14 April the AEU communicated that resolution in writing to its members in the ACT, whose employment in ACT public schools is governed by the Enterprise Agreement.
5. The resolution not to participate in the administration and implementation of the NAPLAN tests is a ban, limitation or restriction and constitutes industrial action.
6. Failure to participate in the administration and implementation of the NAPLAN tests will constitute industrial action.
7. The industrial action:
is impending, threatened or probable; and
is being organised.
8. The industrial action is contrary to s.417 of the Fair Work Act 2009.
9. The industrial action is unprotected industrial action.
10. The Applicant is covered by the Enterprise Agreement and is the employer of persons, members of the AEU who are to take the industrial action.
11. The Applicant is the body which is responsible for implementing and administering the NAPLAN tests.
12. The industrial action will prevent or very seriously hinder the administration and implementation of the NAPLAN tests.
[3] Initially the Orders sought by the applicant were as follows:
1. The Australian Education Union shall not organise, commence, engage in, or direct or advise its members to commence or engage in, any ban, restriction or limitation on the administration and implementation of NAPLAN tests proposed to be carried out in ACT public schools between 11 May 2010 and 13 May 2010.
2. The Australian Education Union shall, no later than 1:00 pm on 28 April 2010:
(a) Discontinue and withdraw all authorisation and advice for the imposition of any ban, limitation or restriction on the administration and implementation of NAPLAN tests to be carried out in ACT public schools between 11 May 2010 and 13 May 2010;
(b) Advise and inform its members whose employment is subject to the ACT Department of Education And Training Teaching Staff Enterprise Agreement 2009-2011 ('the Enterprise Agreement') that they should not effect any ban, limitation or restriction on the administration and implementation of NAPLAN tests to be carried out in ACT public schools between 11 May 2010 and 13 May 2010; and.
(c) Advise and inform its members whose employment is subject to the Enterprise Agreement of the making of these Orders.
[4] On Tuesday 27 April 2010 (Monday 26 April was a public holiday in the ACT ) the applicant lodged a statement 1 made by Diane Joseph in support of the application together with an outline of submissions and an amended Order2 in the following terms :
1. Members of the Australian Education Union who are employed or engaged in any capacity by the Australian Capital Territory are not, between the date of this Order and midnight on 13 May 2010, to carry out any industrial action, whether in the form of stoppage of work, ban, limitation, restriction or in any other manner, in relation to or having any effect upon the conduct of NAPLAN tests which are scheduled to be conducted in ACT public schools during the period 11 to 13 May 2010 inclusively.
[5] The matter was listed for hearing at 11am on Wednesday 28 April. At the commencement of the hearing counsel for the applicant provided a further amended draft order, as follows:
1. For the period between the making of this Order and 5:00pm on 20 May 2010, the industrial action, as defined below not occur and not be organised.
For the purposes of this order, ‘industrial action’ means any stoppage of work, ban, limitation, or restriction in relation to or having any effect upon the conduct or administration of NAPLAN tests which are scheduled to be conducted in ACT public schools during the period 11 to 13 May 2010 inclusively, or alternatively, to be conducted during the period 18 to 20 May 2010 inclusively.
2. This Order applies to the Australian Education Union.3
[6] Counsel for the respondent sought an adjournment of the matter claiming that the new order sought by the applicant was in substantially different terms to those of the draft lodged on 27 April 2010 in respect of which the respondent had prepared its argument. The request for an adjournment was opposed by the applicant and was not granted, given the nature of the matter before the tribunal and the legislative requirement for expeditious determination.
The legislation
[7] Section 418 of the Act provides:
FWA must order that industrial action by employees or employers stop etc.
(1) If it appears to FWA 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;
FWA 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) FWA 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, FWA does not have to specify the particular industrial action.
(4) If FWA 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;
FWA 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.
[8] Section 420 is as follows:
Application must be determined within 2 days
(1) As far as practicable, FWA must determine an application for an order under section 418 or 419 within 2 days after the application is made.
Interim orders
(2) If FWA is unable to determine the application within that period, FWA must, within that period, make an interim order that the industrial action to which the application relates stop, not occur or not be organised (as the case may be).
(3) However, FWA must not make the interim order if FWA is satisfied that it would be contrary to the public interest to do so.
(4) In making the interim order, FWA does not have to specify the particular industrial action.
(5) An interim order continues in operation until the application is determined.
The applicant’s submissions
[9] It was the submission made on behalf of the applicant that the evidence contained in the statement of Ms Joseph was sufficient for the tribunal to be satisfied that the requirements of s.418 of the Act have been made out and that an order should issue in the terms sought in Exhibit ACT3. In essence Ms Joseph’s statement:
[10] It was the evidence of Ms Joseph that on 19 January 2010 the AEU had made a press release indicating that AEU members would not take part in NAPLAN testing if the federal government did not prevent the use of the data collected through NAPLAN testing and published on the My School website from being used to create and publish school “league tables”. Copies of this and subsequent press releases of the same nature were attached to Ms Joseph’s statement.
[11] It was Ms Joseph’s evidence that on 12 April 2010 the Federal Executive of the AEU met to consider the action teachers would take in relation to NAPLAN testing. Also attached to Ms Joseph’s statement was a copy of a press release issued by the AEU on that date noting that the Federal Executive had voted unanimously to impose “an immediate moratorium on the national NAPLAN tests”.
[12] At attachment L to Ms Joseph’s statement was a letter from the ACT Branch Secretary of the AEU advising members of the decision of the Federal Executive and, among other matters, noting that the AEU was preparing materials to be made available to them “to support (them) in implementing the federal decision” and calling on “casual relief members, associate members and members on leave” to support their AEU colleagues by declining to assist with the delivery of NAPLAN 2010.
[13] Ms Joseph’s evidence also dealt with the effect the moratorium was likely to have if it went ahead and AEU members did not assist with NAPLAN testing in the ACT. Essentially, it was her evidence (supported by documentary material) that:
[14] Additionally Ms Joseph provided documentary evidence of the arrangements between the federal and ACT government for the provision of additional funding which was directly and indirectly contingent upon the NAPLAN tests being conducted. The funding that could be threatened by a failure to conduct the tests was significant.
[15] On the basis of Ms Joseph’s statement it was put that Fair Work Australia (“FWA”) could be satisfied that industrial action by one or more employees was both “threatened, impending and probable” in the terms of s.418(2)(b) and “being organised” for the purposes of s.418(2)(c). It was also submitted that there was no doubt that the ACT was a “person affected” within the meaning of s.418(2)(b)(i). Additionally, as the members of the AEU who were likely to implement the “moratorium” on the administration of the NAPLAN tests were employees covered by the DET Teaching Staff Enterprise Agreement 2009-2011, which has a nominal expiry date of 30 June 2011 it was put that the threatened industrial action was not “protected industrial action” (as defined in s.408 of the Act).
[16] It was also submitted for the applicant that the action being organised and threatened was “industrial” action as defined in s.19(1)(b) and (c) of the Act. According to the applicant the action being organised by the AEU if implemented would constitute a ban, limitation or restriction on the performance of work by employees, or a failure or refusal to attend for work or perform any work. The applicant also argued that the reason for threatening or organising the action was not “legally relevant”.
The respondent’s submission
[17] Ms Joseph was not required for cross-examination. The respondent’s counsel did not take issue with the evidence brought by the applicant but outlined in some detail the reasons why the respondent had felt compelled to place a national moratorium on the administration of the NAPLAN tests. Teachers were concerned for the harm the compilation of “league tables” was causing for students, schools and school communities and, in the absence of any action by the federal government to ameliorate that harm, felt that they had a duty not to assist in the collection of data which was then used for the harmful purpose (i.e. the publication of aggregate NAPLAN scores on the My School website without the necessary additional information to render the data meaningful, resulting in the compilation and publication of simplistic, misleading and harmful “league tables” ).
[18] Counsel for the respondent tendered an example of a “league table” 4 of ACT schools published in the ACT in January 2010 and drew attention to the misleading nature of the information and comparisons provided in the document. Also tendered was a document5 setting out the results of a survey of school principals conducted by the AEU, as evidence of the perceived harm to students and school communities caused by the publication of the “league tables”.
[19] It was put that the AEU did not oppose the NAPLAN tests; teachers had conducted the tests in previous years and considered the program a valuable tool. However, teachers were opposed to the use being made of the test data. In response to those concerns the AEU had put forward a proposal 6 designed to prevent the compilation and publication of such misleading and potentially damaging information.
[20] It was noted that the AEU was meeting with the Deputy Prime Minister on the day of the hearing in an attempt to reach a “national settlement” of what was a “national” problem. Counsel for the AEU urged that no order be made until at the earliest Monday 3 May 2010, so as to allow those settlement negotiations to proceed unhindered by extraneous legal proceedings. According to the respondent’s representative, although a number of similar applications had been made in State industrial jurisdictions, the present matter was the first application made in the federal jurisdiction. It was suggested that a premature order might provoke other applications in the Northern Territory and Victoria, which could serve to distract the AEU leadership from reaching a resolution of the matter with the government.
[21] While noting that FWA lacked any discretion whether to make the orders sought if the requirements of the legislation were made out, it was put that FWA did have discretion as to the timing of any final order. Additionally it was submitted that while the legislation required that an interim order be issued if FWA was unable to determine a s.418 application within 2 days, there was discretion not to make an interim order if it was considered not to be in the public interest to do so. There was no requirement to make a final order in any particular period.
[22] Finally it was argued for the respondent that no order should be made as the moratorium did not constitute “industrial” action given that the proposed ban was not directed at the employer and was not seeking any concession from the employer. It was put, on the basis of a decision 7 of a Full Bench, that the Note to s.19 of the Act demonstrated “the intention of the legislature” and that intention was that “action will not be industrial in character if it stands completely outside the area of disputation and bargaining”. It was argued that the action proposed by the AEU was not industrial in character and no order should issue. The action was directed at the federal government, not the employer, and was for the purpose of protecting students, teachers and school communities.
[23] So far as the proposed order was concerned, the respondent submitted that, should an order issue, the draft should be amended
The applicant’s response
[24] Counsel for the applicant disputed that the action was not “industrial” action and relied on subsection 13(3) of the Acts Interpretation Act 1901 as authority for the proposition the Note to s.19 of the Act does not form part of the Act. It was also argued that, in any event, the Note overstated the effect of the Full Bench decision 8 referred to, that the remarks relied upon were, in fact, obiter dicta, and in any event a later Commission decision9 had held that strikes or bans instituted for political purpose constituted industrial action.
[25] It was reiterated for the applicant that the requirements of s.418 had been made out and that, in those circumstances, FWA should issue the order. It was the applicant’s position that no amendments to the draft order, as sought on behalf of the respondent, should be made although there was no opposition to the deletion of the words “which are scheduled to be conducted” from paragraph 1 of the draft as these were arguably unnecessary and their deletion might clarify the restriction of the order to action being organised in respect of, and occurring in, ACT public schools.
Conclusion
[26] It was the position of both parties that, although the application was lodged late on Friday 23 April 2010, that I should consider that the hearing was being conducted within the two day period referred to in s.420(1) of the Act and that that period would expire around 4pm on the day of the hearing. Consequently, if I was unable to finally determine the matter by that time I would be required to issue an interim order 10 unless I considered that it would not be in the public interest11 to do so.
[27] At the conclusion of the hearing of the application at approximately 3pm of 28 April 2010 I advised the parties that I would not be in a position to finally determine the matter within the period required under the legislation as I wished to give further consideration to the arguments put by both parties. I also advised that I was of the view that it was not in the public interest for me to issue an interim order given that I considered that I would be able to deal with the matter to finality within 24 hours. In such circumstances, given that there had been no evidence that anything of any significance was likely to occur (either related to the organisation of the proposed action or in response to the moratorium) in ACT schools in that time period, it was not in the public interest that I make an interim order where further detailed might lead me to conclude that there was no jurisdiction to make an order.
[28] Apart from the argument concerning whether the proposed action had the requisite “industrial” nature there was no challenge to the matters put in evidence by the applicant. I am therefore satisfied that the applicant has the standing to make the application, action is being organised and is threatened, impending or probable and that that the proposed action is not protected.
[29] As a consequence, if I am satisfied that the action is industrial action as defined in s.19 of the Act, I must make an order that the action not occur or not be organised for a period. 12
[30] In my view the action being organised and threatened falls clearly within the definition of industrial action in s.19 of the Act. The AEU is organising members to refuse to perform work required of them by their employer. If the AEU moratorium is complied with by its members in the ACT those members will refuse to administer NAPLAN tests, work carried out by ACT public school teachers in previous years and work which the ACT government, through the ACT Department of Education and Training, requires those teachers to perform as part of their duties.
[31] I have had regard to the Note to s.19 of the Act. I am inclined to agree with the submission made on the applicant’s behalf that the terms of that Note tends to overstate the purport of the remarks made by the Full Bench, particularly given the context in which those remarks were made. What the Full Bench actually said was:
“It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial. But precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear, we have not found it necessary to go beyond the words of the definition.” (my emphasis).
[32] The definition in section 19 of the Act is clear. A refusal to perform work or to perform work in the usual manner will constitute industrial action. The industrial action is being organised and threatened in an attempt to force a concession from another party. There is disputation (in the normal sense of the word) involved and the AEU is seeking to negotiate a settlement of the dispute. The dispute is related to the conditions of employment of the teachers. The AEU clearly outlined the reasons why teachers were opposed to the concept of league tables and these were all related to the harmful effects of those tables on their students, themselves as teachers and their school communities, i.e. their workplaces.
[33] I am unable to accept that, in order that action be characterised as “industrial” for the purposes of s.19, concession must be sought from the employer of the employees concerned.
[34] As all the requirements of s.418 have been made out I am required to issue an order that the industrial action not be organised and not occur.
[35] I understand the deep concern felt by teachers about the compilation and publication of league tables and the harmful effects on schools, students and school communities. However, the requirements of the legislation are clear. I am required to issue the order. I am not persuaded that there will be any utility in delaying the making of the order. Orders have been made and directions to stop the planned industrial action given in a number of State jurisdictions. Administrative processes are already underway in ACT schools in preparation for the NAPLAN testing.
[36] The order will be made in the terms most recently sought by the applicant with the exception that the words “which are scheduled to be conducted” will be deleted, as I share the concern that the use of those words could unintentionally extend the scope of the order. I do not think it is necessary that I include in the terms of the order the exemptions set out in s.19(2) of the Act. Clearly the order will only apply to industrial action within the meaning of the Act. The order sought by the applicant relates to the organisation of industrial action and threatened, impending and probable action. In those circumstances it is appropriate that the order prohibit the organisation of the industrial action and the occurrence of that action.
[37] The order as sought is directed to the AEU. I intend to issue the order in those terms. The order is published separately.
COMMISSIONER
Appearances:
J. Griffiths SC and P. Newall of Counsel for the ACT.
M. Irving of Counsel for the AEU with Mr P Malone of the AEU.
Hearing details:
28 April 2010.
Canberra.
1 Exhibit ACT1.
2 Exhibit ACT2.
3 Exhibit ACT3.
4 Exhibit AEU1 - Extract from the Canberra Times of Saturday 30 January 2010 “How your school rates nationally”.
5 Exhibit AEU2 – League Tables and the My School Website – Survey of Schools- March 2010.
6 Exhibit AEU3 – My School and League Tables - An AEU Proposal.
7 Construction Mining and Energy Union v Coal & Allied Services Pty Limited ( Mount Thorley Operations/Warkworth
Mining) [2008] AIRCFB 1159.
8 Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited PR946290.
9 Nestle Australia v AFMEPKIU PR973247.
10 Fair Work Act 2009, s.420(2).
11 Fair Work Act 2009, s.420(3).
12 Fair Work Act 2009, s.418(1).
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