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

Industrial Relations Commission (NSW)|2010-04-29|Before: Staff J

CITATION: New South Wales Department of Education v New South Wales Teachers Federation [2010] NSWIRComm 55

PARTIES: New South Wales Department of Education and Training (Notifier) New South Wales Teachers Federation (Respondent)

CATCHWORDS: INDUSTRIAL DISPUTE - dispute orders - industrial action by New South Wales Teachers Federation and members employed in public schools in connection with the National Assessment Program Literacy and Numeracy - testing scheduled in May 2010 - ban/moratorium placed on administering tests by Teachers Federation - Commission recommended lifting of ban/moratorium - recommendation not implemented - discretion - industrial action unreasonable - dispute orders made

LEGISLATION CITED: Industrial Relations Act 1996 (NSW) Workplace Relations Act 1996 (C'th)

Australian Workers' Union (NSW) v Bluescope Steel (AIS) Pty Ltd (2006) 151 IR 153 Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and others (1997) 73 IR 311 Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2009 CASES CITED: Department of Education and Training v Queensland Teachers' Union Employees (D1201043, 29 April 2010) Education Amendment (Publication of Schools Results) Act 2009 New South Wales Department of Education v New South Wales Teachers Federation [2010] NSWIRComm 47 New South Wales Department of Education v New South Wales Teachers Federation Re Student Report Bans [2006] 157 IR 329

HEARING DATES: Thursday 29 April 2010, Friday 30 April 2010

Mr M Kimber SC with Mr S Benson and Mr S Mahendra (Notifier) LEGAL REPRESENTATIVES: Crown Solicitor's Office

Mr S Crawshaw SC with Mr M Gibian of counsel (Respondent)

1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

Notification under section 130 by New South Wales Department of Education and Training of a dispute with New South Wales Teachers Federation re Literacy and Numeracy program testing in May 2010

1 On 13 April 2010, the Director-General, New South Wales Department of Education and Training ("the Department") notified the existence of an industrial dispute with the New South Wales Teachers Federation ("the Federation"), pursuant to s 130 of the Industrial Relations Act 1996 ("the Act"). 2 The question, dispute or difficulty related to the National Assessment Program - Literacy and Numeracy ("NAPLAN") that commenced in Australian schools in 2008 for students in years 3, 5, 7 and 9. 3 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 provide students, parents, teachers, schools and school systems with important information about the literacy and numeracy achievements of students. The tests are conducted in May each year. 4 In 2010, the test dates are to be conducted from Tuesday 11 May 2010 to Thursday 13 May 2010 inclusive. The Department estimates that in 2010, approximately 240,000 will take the NAPLAN test. This figure is based on approximately 60,000 students in each of the individual year cohorts. 5 The Department contended, in its notification, that should the NAPLAN test not proceed in 2010, those students and their parents and caregivers will not receive the diagnostic and comparative information that the test reporting provides. This means that the capacity for a parent or caregiver of an individual student to measure their child's achievements against the national average, the school average and the 10 outcome bands (e.g. where the child has received above the national minimum standard) will be lost. Data for the year 3 cohort is particularly important because it is the first point at which standardised test data is collected for students in the Department's system. Without this data, the ability to track the progress of these students, that is, the year 3 students, as they progress through primary and secondary schools will be severely compromised if they do not participate in the 2010 tests. 6 The 2010 NAPLAN test is 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 tests in 2008 when they were in year 3, 5 and 7 will, in 2010, undertake the test for the second time in years 5, 7 and 9 cohort. Should the 2010 tests not proceed, the Department will be unable to track the progress of these students until 2012. Background 7 In late 2008, the Commonwealth and the State and Territory Governments announced agreements to provide significant additional Commonwealth funding over five years including funding for various new National Partnerships. One of the partnership areas is literacy and numeracy. The Commonwealth payments to New South Wales under the National Partnership on Literacy and Numeracy fall into two groups. The first of which are facilitation payments, and the second are reward payments. The maximum allocation of payments for award funding which are available in New South Wales, subject to the achievement of agreed reward milestones by the Department are $47.6 m in 2011/2012 and the same amount in 2012/2013, that is, for the period 20/11/2010 to 20/12/2013, approximately $95 m. 8 Under the Partnership Agreement, reward funding will only be provided to the Department if it can provide data to the Commonwealth Government regarding its achievement of the targets. The targets are, in turn, all based on using NAPLAN data as the measures. 9 On Thursday 28 January 2010, the Australian Curriculum, Assessment and Reporting Authority ("ACARA"), launched the "My School" website. This website provides detailed information about all schools in Australia and enables website users to compare schools with statistically similar characteristics. The reporting of school results on the "My School" website includes each schools' NAPLAN results. Industrial action 10 On 12 April 2010, the Federal Executive of the Australian Education Union ("the AEU") voted: "to unanimously impose an immediate moratorium on the National NAPLAN tests ... .

Teachers cannot hand out the tests until something is done to stop the results being used to publicly brand students and schools as failures in league tables." 11 On 12 April 2010, the Federation published advice on its website informing its members of the AEU's decision and "that the National tests will not go ahead in May." This led to the notification of dispute by the Department on 13 April 2010. 12 The Commission arranged for an urgent hearing of the dispute which was held on 14 April 2010 and issued a recommendation: New South Wales Department of Education v New South Wales Teachers Federation [2010] NSWIRComm 47. 13 Boland J President, made the following recommendation at [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. 14 On 16 April 2010, the Department was advised that the Federation would not abide by the Commission's recommendation and that it endorsed the moratorium of the AEU. 15 On 22 April 2010, the Commission (Marks J) chaired a further compulsory conference between the parties and made the following further recommendation: The Commission strongly recommends the participation by members of the New South Wales Teachers Federation in the process and the immediate lifting of all bans on the administration of the tests including preparatory work next Tuesday. 16 His Honour's reference to "the process" was a reference to a proposal whereby a representative of the Federal body "ACARA", the body that administers the "My School" website, agreed to assist the parties by providing information and engaging in discussions regarding the website. ACARA was only prepared to provide such assistance if the ban on NAPLAN testing was lifted. 17 The Federation indicated to the Commission that any decision to participate in "the process" and lift the bans would be indicated to the Department no later than Tuesday 26 April 2010. 18 On 26 April 2010, Marks J was advised that the bans on the conducting of the NAPLAN tests remained in place. Pursuant to s 135(6) of the Act, Marks J issued a certificate of attempted conciliation upon the application of the Department, who then sought orders pursuant to s 137(1)(a) of the Act. Statutory Provisions 19 Relevantly s 136 and s 137 of the Act provide: 136 Arbitration of dispute (1) The Commission may, in arbitration proceedings, do any one or more of the following: (a) make a recommendation or give a direction to the parties to the industrial dispute, (b) make or vary an award under Part 1 of Chapter 2, (c) make a dispute order under Part 2, (d) make any other kind of order it is authorised to make (including an order made on an interim basis). (2) Any such action may be taken by the Commission on its own initiative or on application by any person authorised to notify the Commission of the industrial dispute. 137 Kinds of dispute orders (1) The Commission may make the following kinds of dispute orders when dealing with an industrial dispute in arbitration proceedings: (a) The Commission may order a person to cease or refrain from taking industrial action. (b) The Commission may order an employer to reinstate or re-employ any one or more employees who were dismissed in the course of the industrial dispute or whose dismissal resulted in the industrial dispute. (c) The Commission may order an employer not to dismiss employees in the course of the industrial dispute if the employer has threatened to do so. (d) The Commission may order a person to cease a secondary boycott imposed in connection with the industrial dispute. (2) If employees are taking industrial action in connection with the industrial dispute, the Commission may order the employees to cease taking that industrial action before it makes any other kind of dispute order against the employer. (3) A dispute order may not provide for the payment of compensation, lost remuneration or any other amount. The Evidence 20 Mr M Kimber SC, who appeared with Mr S Benson and Mr S Mahendra of counsel, read affidavits of Darryl John Husdell, Director of Industrial Relations with the Department, sworn on 27 April 2010 and 28 April 2010. 21 Mr Husdell also gave oral evidence and was required for cross-examination. His evidence was: (i) on 16 April 2010, the Federation issued advice to all Federation representatives, confirming that the Federation executive had "voted unanimously to join with teachers in every other State and Territory to impose a moratorium on the NAPLAN 2010;

(ii) the Federation's advice to its representatives confirmed that the action involved in the moratorium was as follows: "All members, (teachers and principals) should not administer the NAPLAN 2010 tests in your schools, nor should they assist others to do so. This means that you should not assist in the preparation or implementation of the NAPLAN test in any way ..."

"The first ... step to implement the moratorium is to simply not open the package of NAPLAN test materials which will arrive in each school by 30 April, and to leave it unopened in your school."

"However, if someone has opened the package in your school, action to be taken by members includes the following: · Do not conduct 'practice test' in your class or any other activities designed to prepare students for the NAPLAN tests. Do not update student information in SOAR. · Do not sign the Register of Close Relationships form, · Do not participate or cooperate with any meetings of test administrators. · Do not prepare supervision rosters for teachers or for outside supervisors. · Do not allocate rooms for tests. · Do not sort and collate tests and stimulus material in anticipation of the tests. · Do not complete forms relating to test attendance, including participation rolls. · Do not supervise any of the tests. · Do not assist students who have missed the tests to catch up missed tests at a later date."

(iii) a NAPLAN equating process was scheduled to run from 22 April 2010 to 7 May 2010. This allows the 2010 test to be reported on the same scale as previous NAPLAN tests. This process is essential for valid comparisons to be made of student, school, State and National performance from one year to the next. Schools from across Australia are involved in the equating process which involves students completing the equating test and then also completing the 2010 NAPLAN tests;

(iv) 25 schools from the Department were selected by ACARA and are required to complete the 2010 equating tests. Each school selected had two possible replacement schools. To date, 5 of the 25 schools have refused to participate in the equating process. The 10 replacement schools for these 5 schools have also refused to participate;

(v) on 20 April 2010, the Queensland Industrial Relations Commission formally directed the Queensland Teachers' Union of Employees "that there shall be no industrial action, including any ban or moratorium, by the Queensland Teachers Union of Employees, its officers, employees, or members in connection with the conduct of the NAPLAN tests to be conducted between 11 to 30 May 2010 inclusive";

(vi) on 21 April 2010, the Western Australian Industrial Relations Commission determined that "the balance of convenience rests with the applicant in granting an order to the effect that the respondent's members undertake the scheduled NAPLAN testing in this State between 11 to 13 May 2010 for the benefit of the affected State school children: Director-General, Department of Education v State School Teachers Union of WA (Incorporated) [2010] WA IRC 00219;

(vii) the Federation's members participated in the NAPLAN testing in 2008 and 2009 and has no opposition to the NAPLAN tests per se. They recognise the benefits to students, teachers, and carers to be gained from the date available from the NAPLAN test results;

(viii) the Federation has nevertheless expressed its concerns to the Department about the form in which the NAPLAN data is published on the "My School" website and the capacity for third parties, media outlets, in particular, to construct and publish "misleading and damaging league tables" by their own analysis of the data published on "My School";

(ix) in an internet publication in early April 2010, the Director-General of the Department put the Department's position, relevantly stating: ... I understand why some teachers will want to ban the assessment to withhold the information that some media will use to create league tables. League tables are unfair and destructive, but banning the assessment is the wrong approach.

It will hurt the children we serve, deny teachers information they use to teach better and injure public education. And it won't stop the media compiling league tables. ... The worst thing about league tables is that they reduce the complexity of a school community to a single number and a rank. ... We can eliminate the ill-effect of league tables, but not by bans. We'll do it together by explanation, by argument, and by providing better alternatives.

(x) the Department remains prepared to have discussions with the Federation regarding its concerns about the "My School" website and the prospect of league tables being derived by the results published on that site, subject to the Federation agreeing to lift the bans;

(xi) ACARA has advised that the results of the NAPLAN tests will not be available on the "My School" website until November 2010. 22 Also tendered was the transcript of part of a radio interview given by the Hon Julia Gillard MP, Minister for Education. Minister for Employment and Workplace Relations, Minister for Social Inclusion, Deputy Prime Minister, in which the Deputy Prime Minister said "I am not negotiating about what is on the "My School" website because a boycott of National tests is threatened." A conference with the Deputy Prime Minister and senior officials of the AEU on 28 April 2010 failed to reach a resolution of the issue in dispute and resulted in the AEU confirming the continuation of its moratorium. 23 Mr Kimber provided a statement and recommendation of the South Australian Industrial Relations Commission dated 29 April 2010 (1795 of 2010) where the Commission recommended: AEU and its Executive to desist from promotion, pursuing or taking industrial action, any ban or moratorium, including non co-operation in connection in connection with preparation, conduct, administration and/or implementation of the 2010 NAPLAN testing being conducted by and, as required by, the Director General pursuant to the Education Act 1972. 24 A decision of Fair Work Australia (Commissioner Deegan (2010/3522) dated 29 April 2010 granting an order prohibiting the organisation of industrial action by the AEU in the schools in the Australian Capital Territory was also provided to me. 25 Mr Kimber observed that the NAPLAN tests would also go ahead in independent and Catholic schools. 26 Mr Crawshaw SC, who appeared with Mr M Gibian of counsel, called Ms Judith King, the Principal of Riverside Girls' High School and a member of the Federation, to give evidence. 27 Ms King's evidence was that the Riverside Girls' High School teachers supported the AEU policy of non-cooperation with the 2010 NAPLAN tests should the Federal Government fail to guarantee the security of the test data. Ms King confirmed that teachers at Riverside Girls' High School would not be involved in any way with the administration of the 2010 NAPLAN tests. 28 Ms King welcomed the introduction of the NAPLAN tests and the data that became available as a result of such testing and noted that it contributed to best practice teaching. However, she opposed the use of league tables because of their misuse and abuse to date. In her view, which was shared by many of her colleagues, the reporting of the NAPLAN test results was damaging to schools and education standards. During cross-examination, Ms King acknowledged that if the moratorium was lifted, teachers would lose leverage in their attempts to stop the publication of league tables. However, she agreed that the misuse of information flowing from the NAPLAN test results was difficult to control. 29 Documentation proposed by Ms King setting out the essential arguments against the tests was tendered. The Federation also tendered extracts from the Sydney Morning Herald, The Australian, and the Daily Telegraph newspapers of 29 January 2010. Each contained an analysis of the information on the "My School" website that enabled a comparison to be made of each school in New South Wales. It was the publication of the NAPLAN test results which led to the controversy. 30 Mr Crawshaw also tendered a statement of Catherine Anderson, Principal, Chifley College, Mt Druitt Campus, which recorded her concerns in respect of the publication of NAPLAN results. Ms Anderson was not required for cross-examination. Findings 31 It is clear from the evidence in the proceedings, that the Federation has engaged in, and intends to continue to engage in industrial action in connection with its opposition to the administering of the NAPLAN tests 2010, in public schools in New South Wales. The industrial action includes not assisting in the preparation or implementation of the 2010 NAPLAN tests in any way, including not conducting practice tests, participating in meetings with test administrators, preparing supervision rosters for teachers or outside supervisors, not allocating rooms for tests, not supervising any tests and according to the evidence of Ms King, a possibility that if the 2010 NAPLAN tests are administered by non-teaching staff, teachers may walk off the job. 32 Furthermore, it is clear that the Federation has authorised, organised, supported and encouraged the industrial action in connection with the Federation's opposition to the 2010 NAPLAN tests. In my view, there is every reason to believe that the campaign of industrial action by the Federation will continue in the absence of making dispute orders. 33 It is also clear from the evidence that, as a result of the moratorium, no preparation work for the NAPLAN tests will be undertaken by teachers. Submissions 34 Mr Crawshaw opposed the making of dispute orders on two broad bases. Firstly, as a matter of discretion, senior counsel argued I should not make a dispute order. Senior counsel relied upon a decision of Deputy President Harrison in New South Wales Department of Education v New South Wales Teachers Federation Re Student Report Bans [2006] 157 IR 329 at [35] - [37], where the Deputy President declined to make dispute orders. 35 Senior counsel also encouraged the Commission to adopt a similar approach to that adopted by the Full Bench of the Australian Industrial Relations Commission in Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and others (1997) 73 IR 311. In that case, the Commission considered s 127 of the Workplace Relations Act 1996 (C'th) (now repealed). This section gave the Commission a discretion to intervene where it considered it appropriate to prohibit industrial action. The principle that may be extracted from this decision is that for the Commission to exercise its discretion, it will usually need to be satisfied that the industrial action to be made the subject of an order, is illegitimate in a sense warranting that it should appropriately attract a direction by the Commission that it cease, or not occur. 36 Senior counsel submitted that the Commission ought not take the serious step of making a dispute order restraining the taking of industrial action as sought by the Department, having regard to the following considerations: (i) the proposed moratorium upon the conduct of the NAPLAN tests is a product of legitimate, genuine and firmly held professional opinion of teachers that the reporting of results of standardised testing, particularly in the form that permits simplistic comparisons between schools in the form of league tables, is damaging to schools, students and educational standards. The New South Wales Minister for Education and the Director-General have repeatedly expressed the opinion that the publication of league tables is "unfair and destructive";

(ii) the dispute order is being sought at the behest of the Government. However, the Government has said that it will take no action to prevent the test results from the conduct of the NAPLAN test being published as league tables. The publication of the results of the NAPLAN tests by newspapers, media outlets and other persons in a way that ranks or otherwise compares the results of particular schools is expressly prohibited by s 18A(3) and s 18A(4) of the Education Act 1990. Contravention of such provisions give rise to a penalty of up to $5,500 for an individual and $55,000 for a corporation. Despite this legislation being passed by the Parliament in June 2009, the Government has announced that it will not enforce the legislation and has taken no action to enforce the legislation despite blatant breaches of s 18A of the Act; (iii) in making the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2009 ("the Award"), the Government consented to a position (consistent with long standing arrangements between the parties) under which the requirement for teachers to implement standard testing was subject to adherence to agreed protocols as to the utilisation of their results, including that the Government not "publish or broadcast, or aid in the publication or broadcast of any information or achievement, which allows comparison between the individual students, or which will allow schools to be ranked in any publication or broadcast" (cl 13.2 of the Award). Having consented to that Award provision in February 2009, the Government sought to overturn cl 13.2 by legislation in June 2009: see Education Amendment (Publication of School Results) Act 2009.

(iv) the Government seeks a dispute order from the Commission to enforce the conduct of the NAPLAN tests by teachers in circumstances in which it has reneged upon consent instruments placed before this Commission which make the obligation to implement such tests, subject to restrictions upon the use and publication of test results;

(v) the making of a dispute order will not result in the lifting of the moratorium of teachers in other States. 37 In summary, the second objection raised to the making of a dispute order went to the form of the orders proposed by the Department. In this respect, senior counsel focused on the operative provisions of the Act (s 136 and s 137, and the definition of industrial action). It was contended that: (i) it was not possible for the respondent, a trade union with corporate status, to take industrial action and therefore, not possible for an order to be made against an organisation to refrain from taking industrial action; (ii) every ancillary order that refers to taking reasonable steps is not within power and to the extent that Bluescope Steel Ltd (formerly BHP Steel Ltd) v Australian Workers' Union, New South Wales (2004) 137 IR 176 is authority to the contrary, it was submitted it was wrongly decided; (iii) to the extent that the proposed orders are capable of being made against the respondent, they should be made against the respondent without any reference to "by its officers, employees and members"; (iv) there was no provision in the Act or any other legislation that makes a Union liable for the actions of its members (or officers and employees) in any respect; (v) that every ancillary order that refers to taking reasonable steps is not within power and to the extent that Bluescope Steel Ltd suggest it is, it was wrongly decided. 38 Furthermore, senior counsel submitted that, any dispute order that directed that a union refrain from "authorising, organising, encouraging and/or directing members not to do certain acts", does not fall within the definition of industrial action set out in the dictionary to the Act. To the extent that the orders were directed not to a cessation or refraining from taking industrial action, such orders were again beyond power: Transport Workers' Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108, where the Full Federal Court set out the principles when dealing with the then Federal statutory provisions for making an order relating to industrial action (at [37] - [38]). 39 Mr Crawshaw submitted that, where proposed orders are in the form of a mandatory injunction requiring the carrying out of positive steps, this extends to the Commission, in effect, attempting to take over the management of a democratic organisation by directing members of its Executive to vote in a way they might not otherwise vote and is an attempt to create an absolute liability on the Federation "to ensure compliance" and "to ensure that all its officers, employees and members are aware of the orders". Consideration 40 Despite the eloquent submissions of Mr Crawshaw, I am not persuaded to exercise my discretion in favour of the Federation. I am satisfied that the industrial action, which will be made the subject of a dispute order, is illegitimate, warranting a direction by the Commission that it cease, or not occur. 41 The proposed moratorium will have a significant adverse impact on students who are scheduled to undertake the NAPLAN tests in 2010. They will not have the assistance of their teachers and the tests will be conducted by supervisors unknown to the students. If the NAPLAN tests do not occur, they will deprive year 3 students of assessment, and similarly, students in years 5, 7 and 9 of further assessment and measurement of progress since completing the NAPLAN tests in 2008. Any ability to measure a child's achievements against the National average will be lost. 42 Mr Kimber referred me to Deputy President Bloomfield's decision in Department of Education and Training v Queensland Teachers' Union Employees (D1201043, 29 April 2010) where it was observed: The fact that AEU/QTU have decided to take action which primarily impacts on young students, and the capacity to monitor their education or progress over time, belies their professional concern about the negative impact which adverse media coverage of a limited number of schools might have. Instead of placing a moratorium on the conduct of the NAPLAN tests (which I am assured the QTU has not objection to per se) the Union, and its Federal body (AEU), would be better advised to take up the offer of the Deputy Prime Minister and Minister for Education (see her letter of 8 April 2010) to meet with ACARA to discuss their proposals to enrich, or improve, the data on the "My School" website ... that way, the capacity for, for example, media outlets to sensationalise the data will be diminished. 43 I respectfully agree with the Deputy President's comments. 44 The decision of the Federation to direct its members to not undertake any work in connection with the NAPLAN testing constitutes, in my view, a ban or limitation upon the performance of work by teachers and principals working in schools. Such conduct is in contravention of Reg 6 of the Teaching Service Regulation 2007, which requires a member of the Teaching Service to participate actively in all of the corporate interests of the Department and of the school in which the member is employed and to undertake such other duties as may be assigned to members by the person in charge of that school, or any other person having authority to assign duties. Such action clearly falls within the definition of industrial action found in the Act. 45 I turn to deal briefly with the submissions advanced by Mr Crawshaw. In my view, the reliance placed upon the decision of Deputy President Harrison in New South Wales Department of Education and Training and New South Wales Teachers' Federation is clearly misconsidered. In that matter, the Deputy President declined to make dispute orders because he was not satisfied that there existed in schools, a capacity to produce certain school reports, or that it was reasonable that they be produced. No such capacity issue arises here. The NAPLAN tests were successfully conducted in 2008 and are ready to be administered to students again in 2010. 46 In respect of the submissions dealing with terms of the orders, and in particular, whether an order may be made against the Federation and its officers and employees, it seems to me that such submissions are out of conformity with the long history of jurisprudence under this Act and its predecessors. To give but one example, if the Federation's submission is correct that any order should not be made with reference to "its officers, employees and members", this would appear to be an invitation to make orders directly in respect of named individual teachers who are members of the Federation. 47 To the extent that it was submitted that the Full Bench decision in Bluescope Steel was wrongly decided, needless to say, I am bound by that decision. Without rehearsing the submissions put by Mr Kimber in reply, I am convinced that his submissions are correct and that Bluescope Steel does not stand for the proposition that only "real persons" can take industrial action and therefore an order cannot be made against the Federation. It should also be observed that s 137 of the Act carries with it the power that is necessary for orders that are incidental to, or consequential upon the exercise of the power granted to be made: see Transport Workers' Union of New South Wales v Australian Industrial Relations Commission and Others (2008) 166 FCR 108 at [37]; Australian Workers' Union (NSW) v Bluescope Steel (AIS) Pty Ltd (2006) 151 IR 153. Without the Federation being required to take identified reasonable steps within a relatively short timeframe, there can be no doubt that any orders would not be effective. 48 Mr Crawshaw submitted that the position in Western Australia and Queensland, in particular, were distinguishable from that in New South Wales because the Government "has reneged upon consent instruments placed before this Commission which make the obligation to implement such tests subject to restrictions upon use and publication of the tests' results". Although this may be one of the issues causative to the dispute in New South Wales, the Parliament of New South Wales passed the Education Amendment (Publication of Schools Results) Act 2009 that resulted in clauses 13.2, 13.3, and 36.1.2 of the Crown Employees (Teachers in Schools and Related Employees) Salaries and Conditions Award 2009, ceasing to have effect. Prima facie, it must be accepted that the passing of such legislation was in the public interest. I am not prepared to find otherwise. 49 The Commission has made two recommendations in respect of the moratorium on the conducting of the NAPLAN tests for 2010. The Federation has rejected each of these recommendations. Although the Federation's evidence is that members have expressed professional and ethical concerns in relation to the use of the NAPLAN testing data, its refusal to lift the ban on conducting the NAPLAN tests, particularly in circumstances where the results of such tests will not be published until November 2010, which would allow significant further time for discussions between the parties, is, in my view, completely unreasonable. 50 As has been observed on numerous occasions by members of this Commission, resort by the Commission to the making of dispute orders is a rare occurrence in this jurisdiction. Usually, the processes of conciliation and arbitration bring about a resolution. These processes have not borne fruit on this occasion. In my view, the Commission is left with no choice but to make dispute orders. 51 I would, however, recommend that the Federation pause to consider the course it has embarked upon and the impact that this course will have on its standing and reputation, not to mention the effect on primary and secondary school children and their education. 52 Having carefully considered the evidence and submissions put by the parties, particularly where there is no sign that the moratorium will be lifted, in my view, the public interest requires that the application for dispute orders be granted. 53 I propose to accede to the Department's application and issue dispute orders. ORDERS A. Pursuant to s 137 of the Industrial Relations Act 1996 the Commission makes the following orders: 1. The New South Wales Teachers Federation, by its officers, employees and members shall refrain from taking industrial action on 11 May 2010 to 13 May 2010 inclusive by authorising, organising, encouraging and/or directing members not to administer, or assist with the administration of, the NAPLAN tests scheduled to be administered in New South Wales public schools on those dates ("the NAPLAN tests"). 1A. The New South Wales Teachers Federation, by its officers, employees and members shall refrain from taking industrial action on 11 May 2010 to 13 May 2010 inclusive by authorising, organising, encouraging and/or directing members to cease the performance of work if any person indicates an intention to, or attempts to, conduct the NAPLAN tests on those dates at the schools where the members work. 2. The New South Wales Teachers Federation, by its officers, employees and members shall immediately cease and hereafter refrain from taking industrial action from 9.00 am on 1 May 2010 to 13 May 2010 inclusive, by authorising, organising, encouraging and/or directing members not to undertake or to otherwise co-operate with or participate in, any actions, steps or activities by way of preparation for the NAPLAN tests including: (a) opening the package of NAPLAN test materials and following the preparatory directions contained therein; (b) conducting practice tests in the classroom; (c) undertaking other activities designed to prepare students for the NAPLAN tests; (d) updating student information in SOAR; (e) signing the Register of Close Relationships form; (f) participating in, or co-operating with, meetings of test administrators; (g) preparing supervision rosters for teachers or for outside supervisors so as to facilitate the administration of the NAPLAN tests; (h) allocating rooms for the NAPLAN tests; (i) sorting and collating tests and stimulus material in anticipation of the tests; (j) completing forms relating to tests attendance, including participation rolls; (k) participating in, or otherwise co-operating with, the "equating process".

The New South Wales Teachers Federation, by its officers, employees and members, is to take all reasonable steps, within twelve hours of the time at which these orders become operative, to ensure compliance with orders 1 and 2 above, with such steps to include: (a) rescinding the New South Wales Teachers Federation Executive Resolution of 16 April 2010 imposing a "moratorium" on the conducting of the NAPLAN tests ("the Resolution"), within twelve hours of the time at which these orders are operative; (b) notifying members (in a prominent position on its website or by the same means used by the New South Wales Teachers Federation to advise them of the Resolution) that the Resolution has been rescinded; (c) notifying members (in a prominent position by the New South Wales Teachers Federation on its website or by the same means used to advise them of the Resolution) that the "effective steps" and "actions" to be taken by them to implement the ban on the NAPLAN tests, being those set out in the annexure to the New South Wales Teachers Federation Circular, reference: 472/2010/BL: jep dated 16 April 2010 ("the Circular"): (i) are no longer authorised, supported or encouraged by the New South Wales Teachers Federation; and (ii) should not be taken by members. B. Pursuant to s 136(1)(a) of the Industrial Relations Act 1996 the Commission makes the following directions: 1. The New South Wales Teachers Federation is to ensure that all its officers, employees and members are made aware of the orders set out in section A above by posting the orders in a prominent position on its website or by the same means used by the New South Wales Teachers Federation to advise them of the resolution, on or before 8.00 pm on 30 April 2010. 2. Service of these orders and directions may be effected by the notifier sending a facsimile copy to the New South Wales Teachers Federation or by handing a copy of these orders and directions to an officer or an employee thereof by 5.00 pm on 30 April 2010. 3. These orders and directions which are now made, unless specified to the contrary, shall take effect on and from 5.00 pm on 30 April 2010 and shall remain in force until 14 May 2010 unless rescinded, on formal application, before that date. ------------------------

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