Director-General NSW Department of Education and Communities and New South Wales Teachers' Federation [2012] NSWIRComm 54

ex tempore decision 1This is an application made pursuant to s 137(1)(a) of the Industrial Relations Act 1996 by the Director-General of the NSW Department of Education and Communities. 2The application is in terms of a document filed in the proceedings today, which document bears the description 'Orders and Directions'. During the course of the proceedings, as a result of submissions advanced and matters raised by the Commission, the Director-General through his counsel, Mr S Benson, determined to amend the application in the following respects: By the deletion of the order sought in paragraph A2; the deletion of the words "the employees and" in paragraph B1 and by the deletion of the words appearing in paragraph B2 (in consequence of the concession by Mr N Dawson, solicitor, who appeared for the New South Wales Teachers' Federation that service will be affected by the delivery of any order in these proceedings in consequence of the presence of the relevant officers of the New South Wales Teachers' Federation in the court precincts whilst the orders are delivered). 3The matter thereby proceeds in terms of the amended Orders and Directions sought by the Director-General against the New South Wales Teachers' Federation. 4The factual underpinnings are reasonably clear and substantially uncontested. The Federation has confirmed by its Executive Committee its direction to its membership to undertake a 24 hour stop work meeting on Wednesday 27 June 2012. 5Whatever the specific duration of that industrial action may be, it will necessarily have the effect of creating a significant disruption to the delivery of educational services to approximately 750,000 students in schools throughout New South Wales. 6It should also be borne in mind that the industrial action comes, as it were, in the face of the Recommendation given by the Commission as presently constituted on Thursday 21 June 2012 in encouraging the Executive Committee of the Federation to cease the industrial action and to reconsider its position in that respect and in lieu thereof to submit itself to the processes of conciliation and arbitration before this Commission. 7It should also be noted, in that respect, that at an earlier time, when similar industrial action was contemplated, the Federation did not adhere to directions made by Kavanagh J (on 16 May 2012) although I have taken into account the submissions by Mr Dawson that there was also non- compliance with the directions by the Department in some respects. 8The factual position otherwise is set out in the affidavit of Mark Andrew Philip affirmed on 25 June 2012. I have had regard to the facts deposed therein although, as the parties acquiesced, I do not propose to have regard, for the purposes of this decision, to the content of paragraph 19 of that affidavit except to the extent that it may in some way form part of the background of the proceedings (otherwise it plays no active role in my decision). 9There is one other factual matter which I should allude to in the circumstances and that is the submission made by Mr Dawson regarding two recent communications between the respective industrial interests. 10The first of those was annexed to the affidavit in the form of correspondence from Ms Jenny Diamond, General Secretary of the New South Wales Teachers' Federation, to the Minister for Education, the Honourable Adrian Piccoli MP dated 19 June 2012. The second was a communication in response forwarded by the same Minister to Ms Diamond shortly before the convening of the Executive Committee meeting of the Federation on Friday last (which correspondence is dated 22 June 2012). 11I should indicate that I accept Mr Dawson's submission, in that respect, that the communication was late, having regard to the subject matter of the dispute, and, that it left many of the issues sought to be resolved by the Federation in such a state that they could have been reasonably taken by the Federation to have been either wholly or partially rejected out of hand or omitted from consideration. Those are the factual matters underpinning the determination which I shall make. 12I propose to make the orders in their amended form sought by the Director-General. Plainly, in the circumstances of the delivery of this judgment in the manner that I have chosen to deliver it, the reasons given in relation to that decision must be necessarily attenuated. They may be stated as follows: 1.The industrial action will have significant adverse consequences for the delivery of educational services to a very large number of school students in this State. It will affect, on the evidence, some 2,200 schools and disrupt the affairs of not only those students but parents or care givers. It is, therefore, generally in the public interest that the orders should follow, particularly having regard to the limited scope of the orders which are presently proposed. 2.I am mindful of the fact that the Federation has now on two occasions rejected less significant measures adopted by the Commission to avert industrial action. In the first case directions given by Kavanagh J were not complied with and in the second case, and only very recently, the Recommendation made by myself was not accepted. I should not be taken by that reason to indicate that I consider the Executive Committee of the Federation did not bona fide consider the recent Recommendation but it must be taken as plain now that, in the absence of the making of orders against the Federation in the fashion proposed by the Director-General, any lesser form of control or sanction would not produce any alternative course of action. 3.I am also mindful of the difficulties the Federation has encountered in its negotiations to date with governmental interests over what is obviously a very significant reform to the school system in this State. I do not wish to suggest by that observation that the Department has not endeavoured to engage in a consultative process by which discussions would be held with the Federation over the various issues of concern, but that Minister's letter of 22 June would, as Mr Dawson put it, have enlivened concerns of the potentiality of, as I have described it, areas of trespass about which the Federation's entreaties might be rejected out of hand. However, that consideration, such as it may be, is rendered as having little potency in favour of the Federation's defence of this application in view of the stage of these proceedings had reached on the occasion of the making of my Recommendation of last week. Irrespective of the consultative arrangements, or their limitations, as they had applied to that date, it was clear by that time the opportunity for the Federation to ventilate the entirety of its concerns then existed by the utilisation of the provisions of the Industrial Relations Act in such a manner as would enable the speedy and comprehensive conciliation and, if necessary, arbitration of the subject matter of the dispute proceedings (which the Federation had itself filed in order to grapple with the subject issues). It seems to me that in those circumstances the Federation cannot reasonably avail itself of an argument based upon provocation deriving from the 22nd of June letter from the Minister. The argument might be finally tested in this way. Had the Federation not determined to have continued with the industrial action that it has decided to embark upon, then instead of the Commission being occupied in deliberations over an order to restrain that industrial action, it would now, that is at this very instant, be engaged in processes of conciliation directed to overcoming the stated Federation's concerns (as to consultation). This process would have derived from its very application by way of a dispute notification (which proceedings have now been stood over in the light of the industrial action taken). 13It is with some regret, having regard to the opportunities which arose from the Recommendation and the progress made between the parties on Thursday last, that I have formed the view that the only necessary and appropriate step that might be taken in the present circumstances is to make orders of the kind herein sought by the Department. 14Ultimately the compulsion of the public interest, in my view, leaves no other reasonable option. It is my hope that the parties will soon, upon compliance with orders I have made, resume the processes which began to bear fruit at the conclusion of last week. That course ultimately lies entirely in the hands of the Federation. 15In those circumstances, I make orders and directions in accordance with the document which I have described earlier in this decision as 'Orders and Directions' in its amended form. 16So that there may be absolutely no doubt about the orders so made: leaving aside incidental directions, the Commission orders that the New South Wales Teachers' Federation, by its officers, employees and members employed by the Department of Education and Communities is hereby ordered to refrain from taking industrial action on 27 June 2012. 17Those orders shall take effect immediately and shall remain in force until 31 December 2012. 18ADDENDUM: Earlier in this decision I referred to the document known as 'Orders and Directions' as being in an amended form. That left vacant, or omitted, the final element of paragraph B1 which was subject to the making of, or the timing of the making of any decision by the Commission. 19Having regard to the decision now delivered ex tempore, I propose to have inserted in paragraph B1 in the first omission '3pm' and in the second omission 'Monday 25 June 2012', so that the final words of order B1 shall read "no later than 3pm on Monday 25 June 2012" (the words and symbol 'am/' are deleted from the form of the order). Where the Commission earlier made orders in terms of the document known as 'Orders and Directions' in its amended form, that order shall be taken as incorporating the variations to order B1 that I have made so that the orders shall be in terms of the amended orders earlier described, further amended by the alteration to B1 that I have just indicated in this addendum which, in their entirety, shall form the Orders and Directions of the Commission. 20I make Orders and Directions in those terms.