New South Wales Department of Education v New South Wales Teachers Federation [2010] NSWIRComm 47 | Case summary

1 The Director-General, New South Wales Department of Education and Training ('Department') yesterday notified the existence of an industrial dispute. The Department sought an urgent hearing. The notification was listed this afternoon. 2 The dispute concerns the National Assessment Program - Literacy and Numeracy (NAPLAN) program that commenced in Australian schools in 2008 for students in Years 3, 5, 7 and 9. Under the program all students in the same Year level are assessed on the same test items in the assessment domains of Reading, Writing, Language Conventions (spelling, grammar and punctuation) and Numeracy. The tests are conducted in May each year. In 2010 the test dates are from Tuesday 11 May to Thursday 13 May inclusive. The Department estimates that in 2010 approximately 240,000 students will undertake the NAPLAN test. 3 In January 2010, the federal conference of the Australian Education Union (AEU) determined not to take part in the 2010 NAPLAN test if the federal government failed to act to stop what the AEU described as 'damaging' school league tables being created. The AEU's attitude to league tables was that they gave an inaccurate and misleading picture of school performance and that schools in disadvantaged areas would be publicly branded as failing schools. The AEU's view was that this unfair branding would have a damaging impact on students, teachers and parents. The AEU is not an organisation registered under New South Wales industrial law. 4 On 12 April 2010, the AEU's federal executive voted to impose an immediate moratorium on the NAPLAN test. This meant, according to the AEU, the test would not proceed in May unless the federal government addressed the concerns of teachers about the misuse of student data to 'name and shame schools'. The AEU stated that the primary concern of teachers was that nothing had been done to stop test data being taken from the My School website to create damaging league tables in which schools are ranked on test results alone. 5 The My School website was launched on 28 January 2010 by a federal body, the Australian Curriculum, Assessment and Reporting Authority. The website provides detailed information about all schools in Australia and it is said that enables users to compare schools with statistically similar characteristics, although that proposition appears not to be universally accepted. The reporting of school results on the My School website includes the schools' NAPLAN results. 6 The New South Wales Teachers Federation, a registered organisation of employees under the Industrial Relations Act 1996 is, apparently, affiliated with the AEU. On 19 January 2010, the Federation announced to its members that: Teachers from every state and territory voted unanimously this morning at the federal conference of the Australian Education Union not to take part in the national (NAPLAN) tests in May 2010, if the federal government does not act to stop damaging school league tables being created. 7 On 12 April 2010, the Federation advised members of the AEU's decision to impose a national moratorium on the national NAPLAN tests. The announcement further stated that: The Executive of the NSW Teachers Federation will meet on Friday, 16 April to discuss the AEU decision. The NSW Teachers Federation will provide further advice for its members on this issue prior to their return to school on Monday, 19 April, 2010. 8 In the proceedings before me today, the Department submitted that there was much hanging on the NAPLAN test proceeding next month. It was submitted that data for the Year 3 cohort was particularly important because it is the first point at which standardised test data is collected for students. Without this data the ability to track the progress of these students as they progress through primary and secondary school would be severely compromised if they do not participate in the 2010 test. 9 It was further submitted for the Department that the 2010 NAPLAN test was the first opportunity for the Department to measure the progress of students in its schools on the NAPLAN scale. The cohort of students who undertook the test in 2008 when they were in Years 3, 5 and 7 will in 2010 undertake the test for the second time as Years 5, 7 and 9 cohort. Should the 2010 test not proceed, the Department will be unable to track the progress of these students until 2012. 10 The Department was also concerned that any ban by teachers on the NAPLAN test could impact on the National Partnership Agreement on Literacy and Numeracy between the Commonwealth and New South Wales. The Agreement provides for reward funding from the Commonwealth provided agreed milestones are met. The funding is $47.6 million in 2011/12 and the same amount in 2012/13. Under the Partnership Agreement the reward funding will only be provided if the Department can provide data to the Commonwealth regarding its achievement of targets. The targets are based on using NAPLAN data as the measure. 11 Furthermore, it was submitted the 2008 National Education Agreement between the Commonwealth and New South Wales governs the requirements for Commonwealth funding for public schools. As part of the funding arrangements, NAPLAN results are required to be reported in Annual School Reports. If the 2010 NAPLAN test does not proceed, the Department's schools will be unable to report the required results in those Reports. 12 In the light of its concerns about the impact of any ban on the NAPLAN test the Department has sought a recommendation that the ban or moratorium not proceed. The Federation's position, simply put, was a decision would be taken by the Federation on 16 April regarding the AEU's position. 13 The position then is that the Teachers Federation has not yet determined, in an authoritative sense, what it intends to do in relation to the NAPLAN test. That will, apparently, occur on Friday 16 April once the Executive of the Federation meets. It is obvious, though, that a strong feeling exists amongst the teaching profession across the country regarding league tables and their capacity to be misused and to mislead in a manner that the AEU says was the case in the tabloid press and other media outlets earlier this year, where one outlet proceeded to name what it regarded as the 10 poorest performing schools in the State. For my part, I have some difficulty understanding what benefit those 10 school communities would derive from such reporting. 14 Given the strength of feeling amongst the profession, there will be considerable pressure on the Federation's executive on Friday to show solidarity with the AEU. In my estimation, that is a situation that is likely to give rise to an industrial dispute if preventative action is not taken: see definition of 'industrial dispute' in the Dictionary of the Industrial Relations Act.

15 I would strongly recommend that any pressure on the Federation to engage in industrial action be resisted. 16 As far as I am able to ascertain, there is no objection by the Federation to the NAPLAN test per se. Teachers have in the past conducted the test. The objection lies in the fact that its results can be constructed into comparative league tables that, it is said, have the potential to stigmatise students, teachers, parents and, indeed, communities. The foreshadowed ban on the NAPLAN test is being used as leverage to stop the further creation and publication of league tables. 17 At this stage of the proceedings there would appear to be two reasons why teachers should not place any ban or moratorium on the NAPLAN test. The first is that if no test takes place in 2010 it would be enormously disruptive, especially to the achievement of any longitudinal assessment of the educational progress of students through their schooling, for the reasons expressed by the Department. I cannot imagine the community would support that occurring, even if there is considerable disquiet about league tables. The industrial action could also jeopardise the funding arrangements for public schools in New South Wales and there is clearly no public interest whatsoever in that occurring. 18 Secondly, the Department has indicated that the test is critical and must proceed. Presumably, if the ban were imposed, one option for the Department would be to engage persons other than members of the Federation to conduct the test - a less than optimal arrangement. In those circumstances, the test would proceed, the people of New South Wales would be put to millions of extra dollars of unnecessary expense, the Federation would run the risk of being prosecuted for breach of dispute orders if such orders were to be sought and made and, in the meantime, the Federation would have achieved nothing except to isolate its members from what would now appear to be a fundamental part of the national educative process. 19 Admittedly, the material I have is limited. But at this point I am of the firm view that the greater public interest lies with the Commission facilitating the conduct of the NAPLAN test, not endorsing, tacitly or otherwise, industrial action that could forestall that test in furtherance of the AEU's campaign opposing league tables. 20 The Commission would be more than willing to chair conferences of the parties to explore whether the concerns of the Federation regarding the abuse of league tables could be overcome or mitigated and, accordingly, makes that invitation. The problem in that respect, however, would seem to be that it is with the Commonwealth that any decision lies in respect of the operation of the My School website and the use of league tables and from what I am advised, the Commonwealth has, thus far, not addressed the concern of teachers. 21 Nevertheless, provided there is no ban or moratorium imposed by the Federation on the NAPLAN test to be conducted in May, the Commission will conciliate the dispute if the parties consider there is any utility in that course. 22 The Commission recommends, pursuant to s 134(2) of the Industrial Relations Act, that there shall be no industrial action, including any ban or moratorium, by the New South Wales Teachers Federation, its officers, employees or members, in connection with the NAPLAN test to be conducted from 11 May to 13 May 2010, inclusive. 23 Liberty to apply to either party on short notice.

New South Wales Department of Education v New South Wales Teachers Federation

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