NSW Department of Education and Training v NSW Teachers Federation Re Student Reports Bans

NSW Department of Education and Training v NSW Teachers Federation Re Student Reports Bans - [2006] NSWIRComm 346 - NSWIRComm 2006 case summary — Zoe

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The Department must comply with its obligations under the funding agreement to ensure the continuation of Commonwealth funding to government schools. In 2006 this funding amounted to $800 million dollars. Over the period of the funding agreement (2005-2008) the Commonwealth funding will amount to $3.7 billion. 15 Mr Randall concedes that the Schools Assistance Act does not mandate all features of the reports required and confirms that different achievement descriptors have been approved by the Commonwealth in other States. 16 There has been extensive consultation and negotiation between the DET and the Federation resulting in exemption of kindergarten from the reporting requirements and introduction of an option to teachers to use A-E grading or a single word descriptor. 17 This is set out in the evidence of Mr Randall in the following terms: Use this grade Or use this word To describe this achievement A Outstanding The student has an extensive knowledge and understanding of the content and can readily apply this knowledge. In addition, the student has achieved a very high level of competence in the processes and skills and can apply these skills to new situations. B High The student has a thorough knowledge and understanding of the content and a high level of competence in the processes and skills. In addition, the student is able to apply this knowledge and these skills to most situations. C Sound The student has a sound knowledge and understanding of the main areas of content and has achieved an adequate level of competence in the processes and skills. D Basic The student has a basic knowledge and understanding of the content and has achieved a limited level of competence in the processes and skills. E Limited The student has an elementary knowledge and understanding in few areas of the content and has achieved very limited competence in some of the processes and skills.

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That the Minister not require schools to allocate grades A to E (or equivalent) to students in Stage 1 in learning areas other than English and Mathematics. 23 The evidence put that the A-E reporting system is: s difficult to impossible to administer in multi-stream subjects; s confronting and potentially damaging for low achievers or those with learning difficulties or disadvantaged circumstances; s educationally unsound in assessing students on the A-E scale, particularly at younger levels in subjects other than English and Mathematics; s inferior to the present system of reporting which has developed through community consultation over a number of years and which informs the teaching programme and encourages positive interaction between students, parents and teachers; s is inconsistent with professional obligations of teachers in accordance with professional teaching standards approved by the NSW Minister for Education pursuant to the NSW Institute of Teachers Act 2004; s described as the single worst thing that could occur in Aboriginal education and is against the principles to advance Aboriginal education developed by consultation with the Aboriginal community in recent years; s impractical and confusing to parents and students in that the end of year report is to be read in conjunction with the half yearly report to assess progress over the academic year. 24 There is an apparent conflict between the views of the NSW Board of Studies and operation of the Institute of Teachers Act 2004. 25 The evidence brought by the Federation further advises that application of the A-E reporting system cannot be implemented in many schools for 2006 as time, financial resources, and computer software capability does not permit. 26 The evidence is that at some schools the 2006 budget allocations for end year reports have been expended, or substantially expended, on preparing reports in the usual manner; and that the general busyness of term 4 does not allow time for such substantial change. 27 The evidence of Mr Randall is that all necessary computer software will be in place by 6 November 2006. 28 The evidence of Ms O'Halloran is that on withdrawal of proceedings in the previous matter in this Commission on 15 March 2006, the parties were to pursue discussion of the issues, then identified as (Ex 36): s Implementation timeline s Use of the A-E scale s Application of the A-E grading to Years 1 and 2 s Application of the A-E grading to all KLAs in primary school s The use of the phrase 'parents are encouraged' to seek information on the distribution of A-E grades on the front of the reports s Clarification of how reporting will apply to ESL (new arrivals, phase 2 etc) students and students with intellectual learning difficulties Use of information on distribution of A-E grades by schools for promotion and other purposes 29 Ms O'Halloran contends that DET sought to confine discussions to issues concerning students with English as a second language and those with intellectual disabilities. 30 Ms O'Halloran's evidence confirms that the Federation remains philosophically opposed to the A-E reporting system, however, is prepared to negotiate a "more palatable" reporting system for use in 2007; and does not discourage schools which have applied a reporting system of the A to E type from continuing to do so as a matter of professional discretion. 31 Ms Kathryn Deacon is employed by the Federation as an Organiser. She was previously Principal of Canterbury Public School and has held a position on the NSW Board of Studies as a Federation representative. DISPUTE ORDERS AND NOTICE OF MOTION 32 Mr Newall submits that the application by DET and Notice of Motion filed by the Federation are separate and should be dealt with accordingly, putting that the DET application for Orders is a straightforward matter of establishing that industrial action as defined by the Act is in place and is against the public interest in that funding is affected. 33 Mr Newall put DET's argument succinctly at the outset of proceedings (TR 30/10/06 p2): This is a matter of some urgency. The schools are already in the reporting cycle. The work, which is meant to be being done, that is developing and ultimately issuing reports in a particular form, is not being done in many schools at least, though it is in some. Of course, in these circumstances, the Commission is enjoined by the Act to move with urgency.

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So the department's position is in the face of the failure of a recommendation and direction to cease this industrial action, faced with the ongoing industrial action, faced with the urgency and seriousness of the matter, and your Honour will be shown evidence to the effect that federal funding for the New South Wales education system depends upon this reporting system which the dispute is about being put in place now, then the position is that a dispute order should be made. 34 Mr Crawshaw submits that the application and Notice of Motion are connected and materially opposed, putting that the evidence in support of the Federation's Notice of Motion is also relied upon in opposing the orders sought by DET. 35 Mr Crawshaw refutes Mr Newall's proposition that evidence brought by the Federation is irrelevant to the DET application, putting that, while Federal Industrial Relations legislation may provide for mandatory orders on proof of industrial action, the (NSW) Act provides for orders as a matter of discretion. 36 It is well settled in the industrial law of New South Wales and accepted by Mr Newall that access to dispute orders is a matter of discretion. 37 The submission on behalf of DET that it need do no more than establish the fact of industrial action is curious when considered against the grounds advanced by DET that the industrial action is a ban by the Federation restraining members from carrying out a lawful and reasonable instruction. 38 The case advanced by the Federation is that the instruction to apply the A-E reporting scale is neither lawful nor reasonable. 39 The applications were heard concurrently. PUBLIC INTEREST 40 There is undoubted public interest in the funding of education. 41 The argument that orders must be issued to protect Commonwealth funding for schools in New South Wales is not taken further by DET. It is difficult to accept that a government would withdraw funding from a State school system and deny education to the student population. More importantly, there is conflicting and inadequate evidence in respect to the funding issue. 42 Mr Newall was unable to address the form and extent that funding might be affected and the precise foundation for his argument. 43 The paucity of evidence leaves the public interest aspect unquantified, both for the purpose of the proceedings and the potential effect on a particular school. None of the school principals giving evidence were taken to the question of funding, whether they understood the potential effect or whether faculty and parents gave it any consideration in forming their views. 44 Mr Crawshaw submits that regulation 3.3 of the Schools Assistance Regulations 2005 provides scope for arrangements between the Commonwealth and State Ministers for Education which has resulted in exemption from the requirements of sub regulation 2(e) which requires that the student report must include achievement relative to the child's peer group at the school by at least quartile bands. 45 Mr Crawshaw submits that sub regulation 2(d) provides scope for the exercise of professional discretion and the needs of specific schools as sought by the Federation. Sub regulation 2(d) states: (d) the student report must include, for subjects studied, an assessment against achievement levels or bands defined by the education authority or school, being levels or bands that: (i) must be labelled as A, B, C, D, E (or an equivalent); and

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52 The evidence in arbitration discloses that these circumstances no longer obtain. 53 The evidence of Mr Randall that necessary software is expected to be available in schools by 6 November 2006 can be no more than the earnest intention of DET. 54 There is no evidence that DET provided the document required by Direction No 3. This may be simply the evidentiary gap as a result of the position taken by DET or have some other explanation. 55 The dispute orders sought by DET are in two parts. Firstly the order requires the cessation of a ban which, on any definition, is industrial action. The second aspect of the order requires particular conduct by the Federation and its members in the execution of an instruction by the employer that the plain English A-E reporting system be implemented. 56 A party seeking orders requiring conduct by another party carries an onus to make out a case that the conduct sought is industrially reasonable and can be practically achieved. 57 DET did not challenge any of the evidence brought by the Federation, either by cross examination or evidence in rebuttal. The single argument advanced was that the evidence brought by the Federation was irrelevant. 58 The evidence of the Federation was admitted over the objection by DET as to relevance and so it was on notice that the evidence would be considered. 59 In the absence of challenge or contradiction the evidence is accepted. 60 The evidence brought by the Federation establishes a serious concern as to whether the A-E reporting system can be effectively implemented in all schools in 2006. 61 The scale of the task is acknowledged in a memorandum of 9 February 2006 from the Deputy Director General Schools to Principals Of Secondary And Central Schools and Schools For Specific Purposes (Ex 19, attach. B) which states in part: This letter outlines the new reporting requirements that are to apply for secondary school students commensurate with those announced for primary schools last year. I acknowledge that for some schools these requirements reflect current practice but for other schools they will involve significant changes. 62 A similar communication was directed to Principals of Primary Schools. 63 The extent of anguish demonstrated in the evidence brought by the Federation gives rise to a conclusion that directing the implementation of the A-E system without resolution of the professional issues and ensuring certainty of the capacity to comply has an unacceptable potential to create harsh, onerous and unreasonable working conditions. 64 Further, the Commission is reluctant to make Orders that cannot be complied with. 65 It is plain that these issues must be resolved and the terms of the Schools Assistance Act be met. 66 The continuation of industrial action is not appropriate and should cease. 67 I note the terms of the resolution by the Federation that schools cannot and will not comply for 2006 year end reports. There are of course schools which can and will produce reports of the type required. 68 I decline to make the dispute order sought by DET. I am not satisfied that the capacity to produce A-E reports is in place or that it is reasonable to order production of those reports in 2006. 69 The parties should both commit to a common goal that the issues be resolved for reports in 2007, commencing with the half yearly report, which has the advantage of continuity of reporting over the academic year as advanced by the Federation. 70 No party has put to me the process for resolution of the professional differences between them over the A-E reporting system proposed, the view expressed by the NSW Board of Studies, and the operation of the Institute of Teachers Act 2004. 71 The parties should address the process of resolution of the professional issues. 72 To give the present dispute a positive focus it would be useful for the Federation to accept the policy position of DET, which inherently requires compliance with the Schools Assistance Act, and to work with DET to develop the necessary administrative structure. This approach requires DET to accept that particular schools do produce the required form of report and to build on that experience to extend the reporting systems into other schools in an appropriate way. 73 There is no basis for a ban or restriction by the Federation upon schools which have traditionally, or are willing and able to comply with, the A-E reporting requirements. 74 There is room for consideration of special circumstances provided the parties are willing and able to pursue those issues in a co-operative and positive manner. 75 The Orders sought by DET pursuant to s 137 of the Act are refused. 76 Directions are made pursuant to s 136(1)(a) of the Act to the effect that all that is reasonably and practically achievable should be achieved on a school by school basis and where there are good reasons for not implementing the A-E reports in 2006, reasons should be identified and a program established to address and resolve the issues.

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The Federation's Notice of Motion 77 There is no appearance on behalf of the NSW Minister for Education in response to the Notice of Motion by the Federation. An affidavit of service was filed on 31 October 2006 (Ex 44) deposing that the Notice of Motion was served upon the Minister at 4.00 pm, Friday, 27 October 2006. The Notice of Motion served does not inform the Minister of the date, time or location of proceedings which were determined in proceedings on the morning of Friday, 27 October 2006; nor would it appear on the evidence was any other action taken to so inform the Minister. The question of whether service complied with Rules 70 and 71 of the Commission's Rules is unresolved. 78 Mr Newall submits that the Orders sought by the Federation are beyond jurisdiction; and should not be made having regard to the merits. 79 Mr Newall further submits that the Minister for Education is not a party to the dispute notified pursuant to s 130 of the Act giving rise to these proceedings; and should not be joined by Notice of Motion. 80 In the circumstances of conclusions reached in consideration of the DET application it is not necessary to consider these issues further. 81 The Orders sought by the Federation are refused. DIRECTIONS 82 I make the following directions pursuant to s 136(1)(a) of the Industrial Relations Act 1996: 1 The NSW Teachers Federation remove bans and limitations on Year 2006 reports, the effect of which is to remove any impediment to schools which can or have been reporting in the required manner. 2 The NSW Teachers Federation and NSW Department of Education and Training confer as a matter of urgency to identify those schools which have a capacity to produce A-E type reports, and those which do not. 3 The NSW Teachers Federation and NSW Department of Education and Training confer as a matter of urgency to identify the means by which professional differences are properly resolved. 4 The NSW Teachers Federation and NSW Department of Education and Training report to the Commission in proceedings scheduled for 2.00 pm, Wednesday 8 November 2006 in respect to Directions (1), (2) and (3) and the appropriate course for resolution of the industrial matters subject to these proceedings. 83 These proceedings are further listed for report and directions at 2.00 pm, Wednesday, 8 November 2006 at 47 Bridge Street, Sydney. oo0oo

At a glance

Court

Decision date

Before

Source

Judgment (51 paragraphs)

Parties

Cited By (2)