Director General of Education and Communities v NSW Teachers Federation

Industrial Relations Commission (NSW)|2012-08-24|Before: Backman J, Kavanagh J, Mr P, Marks J

Judgment 1The applicant, the Director General of Education and Communities, applied for the imposition of a penalty against the respondent, the NSW Teachers Federation, for a contravention of a dispute order made by her Honour Justice Kavanagh on Tuesday, 12 December 2011 (the dispute order). 2Pursuant to s 139 of the Industrial Relations Act 1996 (the Act), the applicant caused a Summons to show cause to be issued to the respondent summonsing the general secretary of the respondent to show cause why this Court should not take action against the respondent for the contravention. Immediately upon the filing of an amended application on 17 February 2012 the respondent admitted the contravention of the dispute orders. In subsequent written submissions the respondent admitted the contravention in the following terms: On 15 December 2011, in contravention of the order made by Kavanagh J on 12 December 2011, the New South Wales Teachers Federation took industrial action.

Background 3Before considering the parties' respective submissions on penalty, it is necessary to set some of the relevant factual background. This has been helpfully reproduced in two affidavits of Mark Andrew Philip dated 23 December 2011 and 13 March 2012. Mr Philip, at the time he made his affidavits, was employed by the applicant as the Director, Industrial Relations, a position he has held since February 2011. 4On 23 October 2011, the respondent, on its worksite, posted an endorsement of industrial action in the form of a stop work meeting for up to two hours to be held on 2 November 2011. The proposed industrial action was said to be in response to the NSW government's failure to provide a fair and reasonable salaries offer to school and other public education teachers and a failure to commence negotiations. 5The applicant responded to the website posting by notifying a dispute to this Commission on 26 October 2011. A conciliation conference was convened before Marks J on 28 October 2011 at which time his Honour made a Recommendation that the respondent cease and desist from any industrial action on 2 November 2011. 6According to Mr Philip, at some stage the applicant became aware that the respondent intended to continue with the industrial action. It took steps to re-list the matter before Marks J. Further conciliation was unsuccessful and on 1 November 2011 Marks J issued a certificate of attempted conciliation. 7On the same day, the matter came before Kavanagh J at which time her Honour made a Recommendation encompassing the following matters: (a) the applicant agree to make an offer in accordance with the Government's stated Public Sector Wages Policy 2011, to the respondent; and, (b) in that circumstance the respondent is to cease all industrial action. 8Her Honour's Recommendation set out some of the history relevant to the progress of negotiations between the parties. Her Honour noted: At the time Marks J made his Recommendation there was no offer made by the Department who, under guidelines of the New South Wales Public Sector Wages Policy 2011 (published June 2011), should have begun negotiations with the relevant party within three months of the expiry date of the relevant Industrial Instrument (8.6 of the Policy). Under the Government's Wages Policy negotiations should be conducted by the Department in a co-operative and problem solving manner (8.11 and 8.12 of the Policy). The Department, however, has, since the hearing before his Honour Marks J, made an offer through the Federation to the New South Wales Teachers Federation late yesterday afternoon. In that correspondence, directed to the General Secretary of the New South Wales Teachers Federation, the Deputy Director General Workforce Management and Systems Improvement, acknowledged: "... The New South Wales Public Sector Wages Policy 2011 requires that salary increases above 2.5% per year can only be paid through the achievement of employee related cost savings" (emphasis added) The offer then reads as follows:

Subjective factors 35The respondent admitted the contravention at the first available opportunity, thereby saving costs and expenses and the time of the Court which would have been otherwise taken up with a contested hearing. These matters were acknowledged by the applicant although it contended that the frequency with which the respondent breaches dispute orders, "somewhat diminishes that utility". The Court rejects this latter contention insofar as it purports to provide some connection to the utilitarian value to be derived from the admission. The utilitarian value is concerned only with the costs and savings achieved by reason of the admission, not with the respondent's prior contraventions which have been dealt with in the context of specific deterrence. The earlier the admission the greater the costs and savings achieved and consequently the greater the discount of penalty. 36The Court also accepts as a discrete matter that the admission constitutes some evidence of remorse or contrition. In so doing, the Court adopts the approach of Staff J in DET v TF at [49]: To the extent that it was submitted that the admission made by the Federation should be treated as a plea of guilty as entered in criminal proceedings, and receive a discount of 25 per cent for the utilitarian value of the plea, I reject such a submission. These are not criminal proceedings and although I accept that the admission is a manifestation of remorse or contrition, I do not propose to apply strictly the principles in R v Thomson; R v Houlton. However, I do propose to discount the penalty that I would have otherwise imposed upon the Federation for the saving of costs and expenses, and the time of the Court in dealing with this matter. 37The applicant contended that there were no other relevant subjective factors that the Court could take into account in mitigation of penalty. The respondent on the other hand sought to place some reliance on a proposition that on 15 December 2011 the industrial action taken by the respondent involved all public sector unions, but only the respondent was proceeded against by the State of NSW. 38In the Court's view, this is not a relevant consideration. The Court has had no information placed before it as to the circumstances of any other unions taking part in industrial action on 15 December 2011 or why no dispute orders were sought against them. 39The respondent also brought to the attention of the Court a consideration identified by Branson J in Construction, Forestry, Mining and Energy Union v Coal & Allied Operations Pty Ltd (No 2) (1999) 94 IR 231 at 232, to which the Court may have regard in determining penalty. The particular consideration identified by her Honour arose from a contravention of Part XA - Freedom of Association of the Workplace Relations Act 1996 (Cth). Her Honour found that in determining penalty, regard may be had to whether more than one contravention under Pt XA could be seen as distinct contraventions or whether they could be seen to arise out of the one course of conduct. A reading of her Honour's decision reveals that she was dealing with three separate instances of conduct and there was no suggestion that conduct in contravention of Pt XA had been engaged in on some prior occasion. In contrast, the Court here has before it a single contravention and evidence of prior contraventions which occurred earlier in time, that is, a quite different consideration from the one identified by Branson J. The relevance of prior contraventions has been taken into account by the Court in the context of the application of specific deterrence. This is a matter identified by Boland J in Bluescope v AMU (at [37]), as relevant and appropriate to take into account when considering a contravention of dispute orders under s 139 of the Act. 40The respondent also brought to the Court's attention a number of earlier decisions in which penalties were imposed for contraventions of dispute orders. The decisions were placed before the Court to provide guidance when imposing penalty. The respondent acknowledged in written submissions that each case is considered in light of its particular circumstances. In the Court's view, no assistance can be derived when imposing penalty by embarking on a comparative exercise of other decisions which clearly turn on their own respective facts and circumstances.

Other matters 41During the proceedings, the applicant brought to the Court's attention a matter which had been raised in proceedings before Haylen J concerning a contravention of dispute orders made on 7 September 2011: Director-General of the NSW Department of Education and Communities and Managing Director of TAFE NSW v New South Wales Teachers Federation [2012] NSWIRComm 58. 42The matter concerns the issue of the Summons to show cause under s 139(2) of the Act. That section provides: Before dealing with an alleged contravention of the order, the Commission is required to summon the person alleged to have contravened the order to show cause why the Commission should not take action for the contravention. 43In the proceedings before Haylen J, the Summons to show cause was signed by the Industrial Registrar. Section 139(2) requires, in terms, that the Commission issue the Summons, which initiates the proceedings, not the Industrial Registrar or the Deputy Industrial Registrar. 44In the present proceedings, the Summons to show cause purports to be issued by the Industrial Registrar, although it was acknowledged by both parties that the signatory to the Summons is in fact the Deputy Industrial Registrar. 45The applicant's submissions on this matter were to the effect that the Summons to show cause nevertheless complied with the Act, but if the Court were to form a contrary view, it would be open to treat the matter as an irregularity under s 170(3) of the Act. The respondent did not object to this proposed course. In oral submissions, the applicant presented an alternative proposal which was that the Court could issue a replacement Summons and treat the evidence and submissions advanced by the parties as the evidence and submissions in response to the replacement Summons. There was no objection by the respondent to this alternative proposal. 46The functions of the Industrial Registrar and the Deputy Industrial Registrar are set out in s 208 of the Act which provides, relevantly: (1) The Industrial Registrar has the functions conferred or imposed on the Industrial Registrar by or under this or any other Act or law. (2) A Deputy Industrial Registrar may exercise the functions of the Industrial Registrar: (a) as directed by the Industrial Registrar, and (b) during the absence of, or a vacancy in the office of, the Industrial Registrar. (3) Anything done or omitted by a Deputy Industrial Registrar in exercising a function of the Industrial Registrar has effect as if it had been done or omitted by the Industrial Registrar. 47The section authorises the Deputy Industrial Registrar to exercise the functions of the Industrial Registrar as directed by the Industrial Registrar. On the basis that the Summons to show cause was issued by the Deputy Industrial Registrar, s 208(3) therefore operates to validate that action. 48According to the applicant, s 165(1) of the Act requires that a Summons issued, "for the purposes of the Act" be issued by the Industrial Registrar. Section 165(2) requires either a member of the Commission or the Industrial Registrar to sign "any such summons", or, "as otherwise provided by the rule of the Commission". 49The Court was informed that there are no rules which deal with the present set of circumstances. The Court notes that Rule 11 of the Industrial Relations Commission Rules 2009 (the 2009 Rules) makes provision in relation to a Summons to confer (Rule 11.1) and a Summons in proceedings under s 164 of the Act (Rule 11.2), neither of which have any relevance to a Summons issued under s 139(2). The Court also notes by way of completeness that Schedule 1 of the Uniform Civil Procedure Rules (UCPR), as applied to civil proceedings in this Court, specifically excludes the operation of Part 6 of the Rules which deals with originating processes including a Summons. 50In the Court's view, the combined effect of s 165 and s 208 of the Act provided the necessary authority to the Deputy Industrial Registrar to issue and sign the Summons under s 139(2) of the Act. This conclusion proceeds upon the premise that a Summons to show cause issued under that sub-section falls within the definition of a Summons under s 165 of the Act. It follows, that there is no necessity to regularise the proceedings or take any other action such as issuing a new Summons under s 139(2). 51The Court finds that the respondent has contravened the dispute order made by Kavanagh J on 15 December 2011.

Order 52The respondent is fined $12,500 for the contravention of the dispute order made by Kavanagh J on 12 December 2011. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 August 2012

Workplace Relations Act 1996(Cth)

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