Queensland Teachers Union of Employees v State of Queensland

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - OVERRIDING PURPOSE OF AND OBLIGATIONS UNDER RULES OR ACTS REGULATING CIVIL PROCEEDINGS - OBLIGATION TO GIVE REASONS - ADEQUACY OF REASONS GIVEN - where, on appeal, the appellant submits that the Industrial Commissioner failed to give adequate reasons in relation to some issues - whether the Industrial Commissioner failed to refer to the alleged breach of the joint statement by the Department of Education as a discretionary ground in making various findings - whether the Industrial Commissioner was required to refer to the alleged breach as a discretionary ground - whether the Industrial Commissioner gave adequate reasons for the making of orders

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - USE OF HEADINGS IN APPROACH TO INTERPRETATION - where the respondent relied on s 940 of the Industrial Relations Act 2016 (IR Act) to justify the orders made by the Industrial Commissioner - where the heading of Chapter 14, in which s 940 appears, is entitled "General Offences" - where the appellant submits that s 940 applies only to criminal conduct and therefore is not relevant to the making of orders against the appellant - whether the heading to the part of the IR Act limits the operation of the section

Acts Interpretation Act 1954, s 32D, s 35C

Australian Education Act 2013 (Cth), s 77

Australian Education Regulations 2013 (Cth), reg 43

Industrial Conciliation and Arbitration Act 1932, s 4

Industrial Conciliation and Arbitration Act 1961, s 72

Industrial Relations Act 2016, s 6, s 233, s 234, s 235, s 236, s 237, s 238, s 239, s 240, s 241, s 261, s 262, s 263, s 264, s 265, s 266, s 448, s 451, s 473, s 557, s 611, s 940

Workplace Relations Act 1996 (Cth)

Abdel-Messih v Marshall [2018] NSWSC 648, cited

Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57, cited

Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, cited

Crystal Dawn Pty Ltd v Redruth Pty Ltd [1998] QCA 373, followed

Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1995] QCA 187; [1996] 2 Qd R 462, followed

Electrical Trade Union of Employees Queensland & Ors v Brisbane City Council [2017] QIRC 90, cited

Gan v Shop 3, 228-230 Hanvaylee Parade Kingston Pty Ltd [2017] NSWSC 1322, cited

Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315, cited

Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216, cited

In Housing Commission of NSW v Tatmir Pastoral Co Pty Ltd [1983] 3 NSWLR 378, cited

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309, cited

Lo v Chief Commissioner of State Revenue [2013] NSWCA 180, followed

McDermott Australia Pty Ltd v Australian Workers' Union [2011] FCA 303, cited

Norseman Amalgamated Distress and Injustices Fund v The Commissioner of Taxation of the Commonwealth of Australia [1995] FCA 1159, cited

Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355, followed

Queensland Teachers Union of Employees v State of Queensland (Department of Education) [2020] ICQ 024, related

State of Queensland (Department of Education) v Queensland Teachers Union of Employees [2020] QIRC 212, related

Samsung Electronics Company Ltd v Apple Inc & Anor (2011) 217 FCR 238, cited

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed

Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426, cited

Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, cited

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, followed

The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106, followed

Transfield Construction Pty Ltd v Automotive, Food, Metal, Engineering, Printed and Kindred Industrial Union [2002] FCA 1413, cited

Westpac Securities Administration Ltd v Australian v Australian Securities and Investments Commission [2021] HCA 3, followed

Williamson v Lukey [1931] HCA 15; (1931) 45 CLR 282, cited

• [1] The Queensland Teachers Union of Employees (the QTU) appealed the decision of Industrial Commissioner McLennan sitting in the Queensland Industrial Relations Commission (the QIRC) where the Industrial Commissioner made interlocutory orders that the QTU cease unprotected industrial action. The orders were obtained upon the application of the State of Queensland who, through the Department of Education (the Department) is the employer of Queensland teachers who are members of the QTU.
• [2] On 21 January 2021, I made orders disposing of the appeal. These are my reasons for the orders made.

• [3] The Commonwealth has developed the National Assessment Program - Literacy and Numeracy called "NAPLAN". NAPLAN is a national program[1] designed to assess standards of literacy and numeracy being reached by school children. The plan involves the testing and assessment of school children, including those in Queensland schools.
• [4] NAPLAN is not a popular program with Queensland's teachers. The QTU has long expressed concerns about the program. Commonwealth funding to State schools though is dependent upon the States implementing the plan and therefore the Department is no doubt anxious to comply.
• [5] There have been ongoing discussions between the Department and the QTU about NAPLAN for some time. In October 2018, agreement on some issues was reached. A joint statement was issued by the Department and the QTU. One of the QTU's concerns about NAPLAN is as to any adverse impacts of the testing upon students. In the joint statement, this was said:

The Department and the QTU agree that student wellbeing is paramount. Schools actively foster student and parent understanding of the purpose and value of assessment as a tool to exchange feedback, inform teaching and enhance learning. Any recognition or celebration of individual student academic achievement should be in relation to reported grades rather than NAPLAN performance.

The parties agree schools must work to minimise the stress or anxiety some students may experience in relation to assessment, particularly NAPLAN tests, and assist students to develop the strategies needed to succeed at school.

Schools must provide families with advice on supporting their children to thrive at school and, more specifically, on ways to prepare for NAPLAN. The parties acknowledge that families must be supported to make informed decision in the best interests of their children.

The parties acknowledge that there is a legitimate place for limited NAPLAN preparation activities related to the mode and conditions of testing itself.

However, as the NAPLAN website states, 'excessive test preparation using previous tests is not necessary nor useful'. Familiarisation activities should only be conducted in the vicinity of the tests. The parties do not endorse repeated or regular NAPLAN practice tests or the implementation of pre-tests to capture data for the purpose of shaping teaching and learning specifically related to NAPLAN.

The Department and the QTU remain committed to ensuring

• all Queensland state schools are supported to implement the Australian Curriculum
• all teachers are supported to know their students and how they learn, to monitor and assess their student learning, and to make consistent, reliable judgments about student achievement
• all students are supported when they sit the NAPLAN test
• current, comprehensive, school-based evidence of student learning and achievement is used to inform next steps for teaching and learning, school improvement and equity in educational outcomes."

• [6] Practice testing has been planned by the Department for March and April 2021 with the actual tests to occur in May 2021. The QTU is concerned that the Department is acting inconsistently with the joint statement. On 6 October 2020, a ballot was held of members of the QTU and resolutions were passed.
• [7] On 7 October 2020, the QTU issued a "newsflash" to its members consistently with the resolutions passed by the ballot. It was in these terms:

At the close of the ballot yesterday, more than 94 per cent of the more than 8,000 members who participated voted to ban NAPLAN in all its forms.

While the ballot return is lower than the usual voter turnout, the intention of members participating in the ballot was clear - NAPLAN must go.

In accordance with the ballot outcome, Executive last night decided to issue the following Directive:

All QTU members are hereby directed to cease all activities associated with the National Assessment Program - Literacy and Numeracy (NAPLAN) for the remainder of 2020 and the 2021 school year.

The QTU has previously outlined the many issues with NAPLAN (refer to Newsflash 41-20), and these issues remain. This current ballot is the latest in a long series about concerns with NAPLAN.

A ban on all activities associated with NAPLAN includes ceasing:

• administration of the NAPLAN pen and paper test
• administration of the NAPLAN Online test
• participation in NAPLAN training and professional development
• participation in NAPLAN practice testing
• participation in NAPLAN load testing
• participation in NAPLAN load testing[2]
• participation in NAPLAN item testing
• participation in NAPLAN school readiness testing
• participation in the self-service test window
• participation in NAPLAN data analysis/meetings outside of school hours
• any other activity involving NAPLAN in its current form (this includes timetabling; providing or checking student information for either the department, ESA or the QCAA; pre-test sample testing; statistical sampling - please note this is not an exhaustive list)
• any activity, including those above, associated with other NAPLAN trials.

This directive applies to all QTU members, irrespective of whether they participated in the recent ballot. The QTU's message for the past few years has been clear - NAPLAN in all its forms must go."

• [8] The Department regarded the directive contained in the newsflash as "not protected industrial action" as defined by s 234 of the Industrial Relations Act 2016 (the IR Act) and referred the dispute to the QIRC.
• [9] What was sought by the Department from the QIRC by way of relief was:

Pursuant to s. 262(4) of the Industrial Relations Act 2016 the Commission orders:

1. Members of the Queensland Teachers Union of Employees (QTU) employed by the Department of Education (the Department) under the terms and conditions of the Teaching in State Education Award - State 2016 and Department of Education State School Teachers' Certified Agreement 2019, referred to herein as 'Teachers' shall not take, or cease all industrial action, as defined in Schedule 5 of the Industrial Relations Act 2016, including action, which has the effect of a ban, restriction or limitation on the administration and implementation of the National Assessment Program - Literacy and Numeracy (NAPLAN) for the reminder of the 2020 and 2021 school year;
2. For the purposes of these Orders, the word "'ban", includes but is not limited to the following:

1. A ban on the administration of the NAPLAN pen and paper test; 2. A ban on the administration of the NAPLAN online test;

1. A ban on participation in NAPLAN training and professional development;

1. A ban on participation in NAPLAN practice testing; 2. A ban on participation in NAPLAN load testing; 3. A ban on participation in NAPLAN item testing; 4. A ban on participation in NAPLAN school readiness testing; 5. A ban on the participation in the self-service test window;

1. A ban on participation in NAPLAN data analysis/meetings outside of school hours;

1. A ban on any other activity involving NAPLAN in its current form (this includes timetabling, providing or checking student information for either the department, ESA or the QCAA, pre-test sample testing, statistical sampling); 2. A ban on any activity, including those above, associated with other NAPLAN trials.
2. The QTU, its officers, agents, and employees withdraw all directives (including the Members' Newsflash dated 7 October 2020), authorisations and advice for the imposition of any ban; limitation or restriction on the administration and implementation of NAPLAN for the remainder of the 2020 and 2021 school year;
3. The QTU, its officers, agents and employees do not issue any further directives, authorisations or advice which has the effect of a ban, limitation or restriction on the administration and implementation of NAPLAN for the remainder of the 2020 and- 2021 school year;
4. The QTU, its officers, agents and employees forthwith take reasonable steps to advise its members of the contents of these Orders of the Commission and that the ban, limitation or restriction on the administration and implementation of NAPLAN for the remainder of 2020 and 2021 school year has been lifted;
5. The QTU, its officers, agents and employees forthwith take reasonable steps to ensure its members comply with these Orders of the Commission, that such members not take or cease any industrial action which has the effect of a ban, restriction or limitation on the administration and implementation of NAPLAN for the remainder of the 2020 and 2021 school year;
6. The QTU, its officers, agents and employees are not to encourage or incite any member of the QTU not to comply with these Orders of the Commission;
7. The Department is to take reasonable steps to ensure that these orders are distributed to teachers, including casual and relief teachers;
8. These Orders of the Commission be complied with and the QTU advise the Registrar and the Department by affidavit by 5pm on ............................, whether there has been compliance with orders 1, 3, 4, 5, 6 and 7 of these Orders of the Commission;
9. The Department is to advise the Registrar and the QTU by affidavit by 5pm on ............................ as to whether there has been compliance with orders 1, 3, 4, 5, 6, 7, and 8, and in default of compliance, what steps have been taken to its knowledge by QTU, its officers, agents, employees and members, to comply with orders 1, 3, 4, 5, 6 and 7."

• [10] It was obviously contemplated that the QIRC would determine and complete the dates in proposed Orders 9 and 10 after argument.
• [11] Submissions filed by the QTU assumed that the orders sought were jurisdictionally founded in s 473 of the IR Act;[3] that is, that the Department sought injunctions. Some of the orders sought were injunctions but the principal order made was not.[4] The jurisdictional basis of the orders ultimately made by the QIRC is of some significance to the disposal of the appeal and I shall return to that topic. In any event, in the QIRC the QTU sought to defend the application on two bases:
  1. that work on NAPLAN is not within the role of teachers and consequently the withdrawal of labour on NAPLAN cannot be industrial action;[5] and
  2. various discretionary considerations;

(b) the Department had not complied with what the QTU saw as its obligations under the joint statement. Therefore, the QTU submitted the Department did not have "clean hands";[7]

(c) NAPLAN adversely impacts upon the wellbeing of both teachers and students.[8]

• [12] When the matter came before Industrial Commissioner McLennan sitting in the QIRC, the QTU submitted that she should hear the application on an interlocutory rather than final basis. It was submitted by the QTU that the matter had come on quickly, its case could not be fully prepared and presented and the final determination of the dispute at that point was resisted. This was accepted by the Industrial Commissioner who considered whether interlocutory relief ought to be given.[9]
• [13] On 16 December 2020, Industrial Commissioner McLennan made the following orders:

"1. These orders shall come into effect immediately, and shall remain in force until otherwise ordered by the Commission.

1. Pursuant to s 262(4)(a) of the Industrial Relations Act 2016 (Qld) I direct that the unprotected industrial action engaged in by the Queensland Teachers Union of Employees ('QTU'), namely the ban on engaging in NAPLAN contained in the QTU's Directive issued 7 October 2020, is to immediately cease and not re-commence.
2. The QTU is to communicate that information, namely the content of Orders 1 and 2 above, to their members by 9am on 9 December 2020, by email or other similar communications.
3. If the State of Queensland (Department of Education) ('the Department') or the QTU elects to pursue the matter further at arbitration, they are to advise the Industrial Registry to that effect. The parties will then re-convene before the Commission for a further conference, at a time and date to be advised, to settle the question or questions to be decided at arbitration.
4. The QTU shall file an affidavit with the Industrial Registrar by 4pm on Thursday 10 December 2020, as to whether there has been compliance with these orders, and if there has been default of compliance, what steps (if any) have been taken by the QTU to comply with these orders.
5. The Department shall file an affidavit with the Industrial Registrar by 4pm on Thursday 10 December 2020, as to whether there has been compliance with these orders, and if there has been default of compliance, what steps (if any) have been taken by the Department to comply with these orders."

[14] An appeal from those orders was filed on 14 December 2020. The grounds of appeal are:

"1. The Commissioner erred in law by concluding that the QTU was engaged in industrial action and was engaged in unprotected industrial action, when the Industrial Relations Act 2016 provides it is only possible for an employee or an employer to engage in industrial action or unprotected industrial action.

1. The Commissioner erred in law by issuing a direction to the QTU pursuant to s262(4(a) that industrial action engaged in by QTU cease and not recommence when the QTU was not engaged in industrial action and was capable of engaging in industrial action.
2. The Commissioner erred in law by issuing a direction to the QTU pursuant to s262(4(a) that industrial action by QTU cease and not recommence when no finding of fact had been made that any relevant employees were engaged in industrial action.
3. The Commissioner erred in law by issuing an injunction directed against the QTU without complying with the obligation in s473(3) to determine how notice and service of the injunction was to be given to the QTU."

• [15] In the application to appeal, the paragraphs are not numbered as I have numbered them. I will refer to them, though, as grounds 1, 2, 3 and 4 by reference to the numbers I have attributed to them. Ground 2 contains a typographical error. It is obvious that the word "not" should appear before the word "capable".
• [16] The QTU's case on appeal is somewhat different to that mounted before the QIRC. That observation is not meant as a criticism. The matter came before the QIRC very quickly and the response was, by necessity, equally quickly formulated. Further consideration has obviously led to different arguments on appeal.
• [17] Ground 1 raises a point not argued in the QIRC. It was argued that the QTU could not be engaged in industrial action as, because of the definition of "industrial action" and "strike", it is the employees, not the union, who are engaged in industrial action.
• [18] An appeal to this Court from the QIRC is made pursuant to s 557 of the IR Act. Such an appeal is limited to an error of law or excess or want of jurisdiction unless leave is obtained to argue other grounds. Where an appeal is limited to error of law and the argument on appeal was not put to the Court below, difficult questions of construction of the statute authorising the appeal can arise as to whether the new point can, or should be allowed to be argued on appeal.[10] No leave was sought but it was not argued by the Department that the QIRC could not have erred in law by not considering a legal issue not raised by the parties at first instance. The appeal proceeded on the basis that the alleged legal errors raised by the application to appeal were legitimately raised on appeal.
• [19] Grounds 2 and 3 overlapped both with each other and with ground 1. Grounds 2 and 3 were argued together by Mr O'Brien of counsel for the QTU.[11] He submitted:
  1. QTU was not legally capable of engaging in industrial action; that was the point raised by ground 1.
  2. There was no evidence to support the finding that there was in fact unprotected industrial action occurring, or that the QTU was engaging in it.[12]
  3. The Industrial Commissioner failed to properly consider the relevant principles upon consideration of the granting of an interlocutory injunction.[13]
  4. The Industrial Commissioner erred in not considering the alleged breach by the Department of the joint statement as a discretionary consideration.[14]
  5. There was no identified need for the orders. The finding that there was ongoing industrial action was not open.
  6. The Industrial Commissioner failed to give adequate reasons on some issues.[15]
  7. In making Order 3, the Industrial Commissioner did not afford the QTU natural justice.[16]
• [20] Ground 4 of the appeal raises a narrow point based on s 473 of the IR Act. It concerns the form of the orders. It is submitted that the Industrial Commissioner, having made injunctions,[17] was obliged by s 473 to make orders as to how both "notice" and "service" of the orders is to be effected. Order 3 made by the QIRC deals with notice but not service.
• [21] On 22 December 2020, the appeal came before me. At that hearing, it was concluded that the appeal could not be finally determined. Interlocutory orders were made with a view to maintaining the status quo and bringing the appeal to hearing as soon as possible. It was ordered:

"1. Order (2) of the orders of Industrial Commissioner McLennan made on 8 December 2020 be dissolved at 4.00 pm on 21 January 2021.

1. By 4.00 pm on 8 January 2021, the appellant is to communicate to its members the content of the orders made by Industrial Commissioner McLennan on 8 December 2020 and the orders made today.
2. By 4.00 pm on 11 January 2021, the appellant is to file and serve an affidavit as to its compliance with order (2) of this order.
3. By 4.00 pm on 14 January 2021, the respondent is to file and serve any further written submissions on the appeal.
4. By 4.00 pm on 19 January 2021, the appellant is to file and serve any written submission in reply.
5. The appeal is listed for hearing at 10.00 am on 21 January 2021.
6. The show cause proceedings listed for hearing on 23 December 2020 before the full bench of the Queensland Industrial Relations Commission be stayed until further order.
7. There be liberty to apply.
8. Costs reserved"

• [22] My reasons for making the orders of 22 December 2020 are published as Queensland Teachers Union of Employees v State of Queensland (Department of Education).[18]
• [23] On 21 January 2021, I heard the appeal and made the following orders:

"1. These orders are to come into force immediately and to remain in force until final determination of the application before the Commission or earlier order of the Court.

1. Pursuant to s 262(4)(a) of the Industrial Relations Act 2016 (Qld) I direct that the unprotected industrial action engaged in by the Queensland Teachers Union of Employees (QTU) namely the directive issued to its members on 7 October 2020 that "all QTU members are hereby directed to cease all activities associated with the National Assessment Program - Literacy and Numeracy (NAPLAN) for the remainder of 2020 and the 2021 school year" is to immediately cease and to not recommence.
2. The QTU is to communicate that information, namely the contents of orders 1 and 2 above, to its members by 4.00 pm on 27 January 2021 by emailing a copy of these orders to each of their members.
3. The QTU shall file an affidavit with the Industrial Registrar by 4.00 pm on 28 January 2021 as to whether there has been compliance with these orders.
4. Each party shall have liberty to apply to the Commission as to the progress of the application.
5. The appeal is otherwise dismissed.
6. There be no order as to costs."

• [24] These are my reasons for the orders made on 21 January 2021.

• [25] There was clearly jurisdiction in the QIRC to make the orders which it did.[19]
• [26] As already observed, the QUT assumed that the orders made by the Industrial Commissioner were injunctions made in reliance upon s 473 of the IR Act. That assumption led to criticism of paragraph [40] of the Industrial Commissioner's reasons. There she said:

"[40] The Department seeks a variety of injunctions as a remedy in this dispute. The orders sought are in mandatory and prohibitory forms, and rather over egg the pudding in my view."

"[44] Despite that comment,[20] the Industrial Commissioner made orders in both a mandatory and prohibitory form. It is, with the greatest respect to the Industrial Commissioner difficult to see a clear explanation for the making of the orders."

• [28] Order 2 made by the Industrial Commissioner is, at first glance, of the nature of an injunction. It enjoins the QTU from doing something, namely taking unprotected industrial action. Again, at first glance, the making of that order seems inconsistent with the Industrial Commissioner's comment about "over egging the pudding" as a reason for refusing to make injunctions.
• [29] However, during argument on 21 January 2021, it became clear that the Industrial Commissioner had made orders consistently with paragraph 1 of the Department's application which sought relief consistently with s 262(4)(a) of the IR Act but refused to make orders consistently with paragraphs 3, 4, 5, 6, 7 and 8 of the application. Those paragraphs sought injunctions.
• [30] Chapter 6 of the IR Act concerns "Industrial disputes". Section 262 provides:

(a) notice of a dispute has been given by a party under section 261(2); or

(b) whether or not a notice of a dispute has been given under section 261 - the commission considers it is in the public interest to take action under this section in relation to the dispute.

(2) Subsection (1)(b) applies irrespective of whether the parties are attempting to resolve the dispute.

(3) The commission may take the steps it considers appropriate for the prevention or prompt settlement of the dispute, by -

(b) if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute - arbitration.

(4) Without limiting subsection (3), the commission may do 1 or more of the following -

(a) direct any industrial action in relation to the dispute to stop or not happen;

(b) make orders, or give directions, of an interlocutory nature;

(c) exercise the commission's powers under section 473 (whether or not application under that section has been made) to grant an interim injunction;

(d) make another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute.

(a) the commission may name a party to the dispute as having carriage of the proceedings; and

(b) the party named has the carriage of the proceedings accordingly.

(6) This section does not affect the operation of an industrial instrument that imposes a duty on a party to the instrument in relation to industrial disputes." (emphasis added)

• [31] Section 264(2)(a) empowers the QIRC to "direct any industrial action in relation to the dispute to stop or not happen". Section 264(2)(c) then refers to the QIRC's powers under s 473. That section concerns injunctions. It provides:

(1) On application by a person under section 474, the commission may grant an injunction -

(a) to compel compliance with an industrial instrument, a permit or this Act; or

(b) to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.

(a) the officers or members of an organisation generally; or

(b) particular officers or members of an organisation; or

(3) The commission must decide how notice of, and service of the injunction on, each of the persons to whom the injunction applies must be given.

(4) Without limiting subsection (3), the commission may order that the notice, and substituted service of the injunction, be given by advertisement.

(5) If a person to whom the injunction applies is given notice of the injunction, the person must comply with the injunction.

(6) If the injunction applies to an organisation, the organisation and each officer of the organisation must ensure the officers and members of the organisation comply with the injunction.

(7) If the officers or members, or a substantial number of the officers or members, of an organisation to whom an injunction applies contravene the injunction, the organisation and each officer of the organisation is taken to have failed to comply with the injunction.

(8) However, subsection (7) does not apply to the organisation or officer if the organisation or officer proves, on the balance of probabilities, that the organisation or officer took all reasonable steps to ensure the officers or members complied with the injunction.

(9) The commission can not grant an injunction for a proposed contravention of section 316, 326, 329 or 330.

organisation includes a branch of the organisation."

• [32] On a proper construction of s 264, the relief identified by s 264(2)(a) is not an "injunction", at least not an injunction which the QIRC is empowered by s 473 to grant. It is a specific and distinct statutory remedy, although injunctions may no doubt be given under s 473 instead of, or in addition to, an order under s 264(2)(a).
• [33] Paragraph [40] of the Industrial Commissioner's judgment makes perfect sense once it is realised that the orders were not made in reliance upon s 473 of the IR Act. After consideration, she made an order pursuant to s 262(4)(a). That was an order sought by paragraph 2 of the "proposed orders".[21] The injunctions which were sought were not given. Those orders were judged by the Industrial Commissioner to be unnecessary; "over egging the pudding" as she explained.

• [34] Grounds 1 and 2 both raise a common question, namely whether an industrial organisation such at the QTU can be engaged in industrial action. The argument arises because of the way the IR Act has defined "industrial action" and "strike".
• [35] "Industrial action" is defined as:

"industrial action means a lockout or strike."

• [36] Here there is no suggestion of a "lockout". No industrial action is being taken by the Department who is the employer.[22] The term "strike" is defined as:

1. Strike means the conduct of 2 or more employees employed or formerly employed by an employer, if -

(i) a wilful failure to perform work required under the employees' employment contracts;

(ii) the performance of work by the employees in a way that it is not customarily performed;

(iii) the adoption of a practice or strategy by the employees resulting in a restriction, limitation or delay in the performance of work or a restriction or limitation of the product of work;

(iv) a ban, restriction or limitation on the performance of work or accepting or offering work;

(v) a wilful failure of the employees to attend work that is not allowed by the employer;

(vi) a wilful failure of the employees to perform work in a way that is not allowed by the employer; and

(b) the conduct occurs because of a combination, agreement or understanding, express or implied, entered into by the employees for any of the following purposes -

(i) to compel or induce an employer to agree to employment conditions;

(ii) to compel or induce an employer to employ or stop employing a person or class of persons;

(iii) to compel or induce an employer to comply with demands made by the employees or any other employee;

(iv) to help employees in the employment of another employer to compel or induce the other employer in a way mentioned in subparagraph (i), (ii) or (iii);

(v) to cause loss or inconvenience to an employer in the conduct of business;

(vi) to incite, instigate, aid, abet or procure another strike.

1. Also, strike includes conduct capable of constituting a strike under paragraph (a) even though the conduct relates to only part of the functions the employees must perform in their employment.
2. However, strike does not include action by an employee if -

(a) the action was based on a reasonable concern by the employee about an imminent risk to the employee's health or safety; and

(b) the employee did not unreasonably contravene a direction of his or her employer to perform other available work at the employee's workplace, or another workplace, that was safe and appropriate for the employee to perform."

• [37] The QTU's submission is essentially that, as the term "strike" refers to "conduct of 2 or more employees", it is the employees who "strike", not the industrial organisation. That can be accepted. It does not follow though that no orders may be made under s 262(4)(a) against an industrial organisation in relation to a strike.
• [38] Chapter 4 of the IR Act is entitled "Collective bargaining". Employee organisations are consistently recognised in Chapter 4. Part 8 of Chapter 4 is headed "Protected industrial action". That is a little misleading because the part does not deal exclusively with "protected industrial action". It distinguishes "protected industrial action" from industrial action which is "not protected" and then contains various provisions which create rights and remedies consequent upon both "protected" and "not protected" industrial action.
• [39] Section 233 defines "protected industrial action". Section 234 defines industrial action which is "not protected". Those provisions provide:

"233 When industrial action is protected industrial action

(1) Industrial action is protected industrial action for a proposed bargaining instrument if the industrial action -

(b) is not industrial action to which section 234 applies.

(a) organised, or engaged in, by a protected person for the purpose of -

(i) supporting or advancing claims made in relation to the proposed instrument; or

(ii) responding to industrial action mentioned in paragraph (b)(i) by an employer who will be covered by the proposed instrument; or

(b) organised, or engaged in, by an employer who will be covered by the proposed instrument for the purpose of -

(i) supporting or advancing claims made in relation to the proposed instrument; or

(ii) responding to industrial action mentioned in paragraph (a)(i) by an employee who will be covered by the proposed instrument.

(3) The following persons have not contravened, before the industrial action starts, the requirement to negotiate in good faith under section 173 -

(a) if the industrial action is a strike by an employee who will be covered by the proposed instrument - the negotiating party for the employee;

(b) if the industrial action is a lockout by an employer who will be covered by the proposed instrument - the employer.

(4) If the industrial action is engaged in by employees, the employees likely to be engaging in the industrial action have, before the industrial action is engaged in, been approved by the registrar under section 235 to engage in the industrial action.

(5) Before the industrial action is engaged in, notice of the industrial action must have been given under section 236.

(6) The industrial action may be engaged in during conciliation for the proposed bargaining instrument.

protected person, for a proposed bargaining instrument, means -

(a) an employee organisation that is a negotiating party for the proposed instrument; or

(b) an officer or employee of that employee organisation acting in that capacity; or

(c) an employee who is a member of that employee organisation and will be covered by the proposed instrument.

1. When industrial action is not protected industrial action

(1) Industrial action is not protected industrial action for a proposed bargaining instrument if the industrial action is engaged in -

(a) on or before the nominal expiry date of any existing bargaining instrument or arbitration determination that will be replaced by the proposed instrument; or

(b) during any peace obligation period for the proposed instrument.

(2) Industrial action is not protected industrial action for a proposed bargaining instrument if the industrial action is engaged in during arbitration for the proposed instrument.

(3) The following persons must not engage in industrial action to which subsection (1) or (2) applies -

(a) an employee who will be covered by the proposed instrument;

(b) an employee organisation that is a negotiating party for the proposed instrument;

(c) an officer or employee of that employee organisation acting in that capacity;

(d) an employer who will be covered by the proposed instrument." (emphasis added, legislative notes omitted)

• [40] Section 233(4) provides that approval of the Registrar must be obtained for the industrial action. Section 235 concerns the approval and it provides:

(1) For section 233(4), the registrar must, on application by an employee organisation, approve the employees likely to be engaging in the proposed industrial action doing so if satisfied that -

(a) before making the application, the employee organisation followed the process approved under subsection (2) and the result was that a majority of employees who participated in the process expressed support for the industrial action; and

(b) the employees are members of the employee organisation; and

(c) the employees will be covered by the proposed bargaining agreement the subject of the industrial action; and

(d) the employees are not proposing to engage in the industrial action -

(i) before the end of the nominal expiry date of any existing bargaining instrument or arbitration determination that will be replaced by the proposed bargaining instrument; or

(ii) during any peace obligation period for the proposed bargaining instrument.

(2) For subsection (1)(a), the employee organisation must provide its members likely to be engaging in the proposed industrial action with a process, approved by the registrar, to express their democratic views about the industrial action.

(3) An approval remains in force for the period stated by the registrar." (emphasis added)

• [41] By s 233(5), notice of industrial action must be given. Section 236 concerns the giving of notice. It provides:

(1) For section 233(5), the protected person[23] or employer intending to take the industrial action must give written notice of the intention to all of the negotiating parties for the proposed bargaining instrument -

(a) at least 3 working days before the day the intended action starts, unless paragraph (b) applies; or

(b) if the intended action is in response to industrial action as mentioned in section 233(2)(a)(ii) or (b)(ii) or the intended action is taken after industrial action is taken by a negotiating party - at any time before the day the intended action starts.

(2) However, an employer may, instead of giving written notice, take any other reasonable steps to notify employees of the intended action.

(b) the day on which the intended action will start.

(4) Notice under this section may be given before the end of any peace obligation period for the proposed bargaining instrument, as long as the intended action does not start during that period."

• [42] Section 237 gives limited legal immunity against legal liability arising from protected industrial action. Sections 238 and 239 protect employees against action by an employer as a result of the employees participating in protected strike action. Sections 240 and 241 empower the QIRC to suspend protected industrial action.
• [43] Part 8 consistently recognises the involvement of industrial organisations in collective bargaining and in "industrial action". The term "protected person" in s 233(7) includes an employee organisation and its officers and employers. Section 234(3) expressly prohibits an employee organisation, its employees and officers from engaging in industrial action which is not protected. Section 235 assumes that an employee organisation will apply for approval for industrial action. Section 236, by providing that a "protected person" may give the notice required by s 236, authorises an employee organisation to give the notice. An employee organisation is a "protected person".
• [44] An employee organisation is defined as:

"employee organisation means an organisation of employees"

• [45] Chapter 12 of the IR Act regulates, by a system of registration, industrial organisations, including employee organisations. An industrial organisation may be a body corporate, but not necessarily so. If the organisation is not a body corporate, it becomes a corporation upon registration as an industrial organisation under the IR Act.[24]
• [46] As already observed,[25] Chapter 6 of the IR Act concerns industrial disputes. Section 261 provides that notice of an industrial dispute must be given to the Registrar. It is in these terms:

(1) Subsection (2) applies if an industrial dispute -

(b) remains unresolved after the parties to the dispute have genuinely attempted to settle the dispute.

(2) Each party to the dispute must immediately give the registrar written notice of the dispute.

(a) may be given by letter, facsimile, email or other means of written communication; and

• [47] Section 262, which I have already set out,[26] vests jurisdiction upon the QIRC to take action on the industrial dispute. Sections 263 and 264 concern mediation by the Commission and the holding of a compulsory conference at the order of the Commission.
• [48] Section 265 concerns the enforcement of the Commission's orders. It provides:

(1) The commission may direct an order about a dispute to -

(b) a person in a capacity as an officer or agent of an organisation; or

(2) If an order may be directed to an organisation or a person, the commission may direct the order to the person only after considering whether it would be more appropriate to direct the order to the organisation.

(a) if the order is made against a person - state the person's name; and

(c) direct any of the following to file an affidavit with the registrar within a stated time -

(i) the organisation or person to whom the order is directed;

(ii) the party to the proceedings who sought the order;

(iii) any other party to the proceedings the commission considers appropriate.

(4) An affidavit under subsection (3)(c) must state whether there has been compliance with the order and, if the order has not been complied with, the steps the person is aware of that have been taken to comply.

(5) The commission may extend a time stated under subsection (3)(b) or (c).

(6) At the end of the time stated or extended for filing an affidavit, the registrar must -

(b) if not all affidavits required to be filed have been filed by that time - make all necessary further inquiries; and

(c) having examined the affidavits filed and made the inquiries necessary, decide whether there has been substantial compliance with the order.

(7) If the registrar is not satisfied that there has been substantial compliance with the order, the registrar must issue a notice (a show cause notice) under the rules calling on the organisation or person to whom the order was directed to show cause to the full bench at a stated time why the organisation or person should not be dealt with under section 266.

full bench means the full bench constituted by 3 or more members, 1 of whom must be the president, vice-president or a deputy president (court)." (emphasis added)

• [49] "An order about a dispute"[27] must include an order made under s 262(4)(a).
• [50] Section 265 provides that a show cause notice may be given to an employee organisation where the Registrar is not satisfied there has been substantial compliance with orders made by the Commission. That assumes, as s 265 expressly provides, that orders may be made against an employee organisation in relation to a dispute.
• [51] Section 266 then prescribes remedies if a show cause notice is not met. It provides:

(1) If an organisation issued with a show cause notice does not show cause at the stated time, the full bench may do 1 or more of the following -

(a) impose on the organisation a penalty of not more than 1,000 penalty units;

(b) amend a bargaining instrument to which the organisation is a party;

(c) if the organisation is an employee organisation - suspend the date of operation of a wage increase otherwise payable to members of the organisation or to a class of the members;

(d) change the organisation's rules to exclude from eligibility for membership persons belonging to a particular class or section of the membership;

(i) to restrict the use of the organisation's property; and

(ii) to control the organisation's property to ensure the restrictions are complied with;

(f) suspend the organisation's registration for a stated period;

(h) make the other orders it considers appropriate -

(i) to secure the organisation's compliance with the commission's order; or

(ii) to punish the organisation for not complying with the commission's order;

(i) order the organisation to pay the costs of the show cause proceedings.

(2) If a person issued with the notice does not show cause at the stated time, the full bench may do 1 or more of the following -

(a) impose on the person a penalty of not more than 40 penalty units;

(b) make the other orders it considers appropriate -

(i) to secure the person's compliance with the commission's order; or

(ii) to punish the person for not complying with the commission's order;

(c) order the person to pay the costs of the show cause proceedings.

(3) All persons concerned must comply with an order or direction made or given by the full bench.

organisation includes a branch of an organisation.

stated time means the time stated in the notice to show cause under section 265(7) or the time to which the proceedings are adjourned."

• [52] The term "strike" is defined in a fairly complicated way. Its critical component is "conduct". Two or more employees must do one of the acts listed in paragraphs (a)(i)-(vi) of the definition. If two or more employees engage in the relevant conduct, then it is a "strike" if "the conduct occurs because of a combination agreement or understanding, express or implied" which is entered into for any of the purposes set out at paragraph (b)(i)-(vi) of the definition.
• [53] The notion of "combination" is familiar to the industrial law[28] and has appeared in earlier industrial legislation.[29] The Department submits that the "combination" is the QTU and its members. Therefore, so it is submitted, the QTU, being the industrial organisation, has engaged in the strike. The difficulty with that submission is that the strike must be the conduct of two or more employees. The "combination" of employees into an industrial organisation is of course not unlawful. It is the conduct of two or more employees which occurs because of the combination by the employees for one of the purposes in paragraph (b) which constitutes the "strike".
• [54] The IR Act here raises two separate and distinct questions. The first is whether there is a "strike". The second is that, if there is a "strike", can and should an order be made under s 262(4)(a) against the QTU directing that "any industrial action in relation to the dispute stop or not happen"?
• [55] The Industrial Commissioner found that "unprotected industrial action has occurred and is ongoing".[30] She did not make specific findings that two or more employees[31] had formed a combination agreement or understanding to withdraw labour[32] in order to compel or induce the Department to comply with demands.[33] It is unsurprising that the Industrial Commissioner did not descend to make those specific findings. The Industrial Commissioner had the evidence of the newsflash. That was taken on its face and showed that 94 per cent of 8,000 members of the QTU had voted to ban NAPLAN. Of course there were "two or more employees engaging in relevant conduct". There were in fact thousands of them and, through the QTU they imposed "a ban, restriction or limitation on the performance of work ...". The purpose of the combination of those employees was to compel the Department to reject NAPLAN and not require teachers to implement it. No clearer expression of that can be found than in the newsflash where it is said "The QTU's message for the past few years has been clear - NAPLAN in all its forms must go".
• [56] The submissions made by the QTU before the QIRC did not contest that there was a strike except on the limited basis that the conduct occurred upon a reasonable concern about an imminent risk that NAPLAN posed to the health and safety of teachers and students.[34]
• [57] The Industrial Commissioner considered and rejected the submission that the conduct was based on a reasonable concern as to an imminent risk to health and safety.[35] There is no challenge to those findings. Therefore, it being obvious that members of the QTU are involved in a "strike", and there being no serious suggestion that the strike is protected industrial action, the only remaining question is whether an order under s 262(4) should be directed to the QTU, the relevant employee organisation. That question is answered by construing the IR Act as a whole, having regard to its context and purpose.[36]
• [58] As already observed, the IR Act recognises the existence of industrial organisations and recognises they have a role in collective bargaining and in industrial disputes. It would be extraordinary if sections such as ss 233, 234, 235, 236 and 237 recognise that employees could be involved in strike action through an employee organisation, but the Commission had no jurisdiction to make an order against an industrial organisation that a strike stop. Sections 262 and 265 expressly authorise the making of such an order.
• [59] Ground 1 fails.
• [60] I have not found it necessary to determine the scope of operation of s 940. However, as there was argument about s 940, I ought consider it.
• [61] The Department relied on s 940. It is in these terms:

A reference to a person engaging in conduct includes a reference to the person being, directly or indirectly, a party to or concerned in the conduct."

• [62] The Department submitted that the relevant "conduct" is the strike action; that is conduct by employees who are members of the QTU. The QTU itself is, I have found, liable to an order under s 262(4)(a) because it distributed the newsflash and gave the directive. It is the relevant employee organisation to whom an order under s 262(4)(a) should be directed. It is not necessary for the Department to call s 940 in aid of its case.
• [63] However, as already explained, the strike is the conduct of the employees. The Department submits that the QTU was "concerned in" the "conduct" of the employees. Therefore, the QTU has engaged in the conduct which forms the strike. This, the Department submits, is another basis to make the orders.
• [64] Section 940 appears in Chapter 14 of the IR Act which is headed "General offences". The QTU submits that s 940 is of no assistance to the Department as the section only concerns criminal conduct, that is conduct alleged to constitute an offence.
• [65] Headings form part of the Act and therefore can be taken into account in the Act's construction.[37] Undoubtedly, as a matter of law, a heading can restrict an otherwise broader interpretation of a provision.[38]
• [66] The text of s 940, taken literally, is not limited to criminal "conduct". It would include other conduct. Therefore, the construction issue is whether the heading to the Part in which s 940 is found limits the operation of the section. There is apparently no authority on the point.
• [67] The text of a provision (including the heading) must be construed in context, both of the legislation itself and its history.[39]
• [68] Here, the history of the provision is of little assistance. In the Industrial Relations Act 1999, the immediate predecessor of the IR Act, the equivalent to s 940 was s 676. Section 676 was contained in Part 13 which, like Part 14 of the IR Act, was headed "Offences". In the Industrial Relations Act 1990, the equivalent to s 940 was contained in the general definitions section (s 5), so would apply more broadly than to just criminal offences. There are no extrinsic materials which cast light on s 940.
• [69] Section 937, which is also contained within Chapter 14, provides as follows:

(1) This section applies to an organisation or person who -

(a) takes part in the commission of an offence under this Act; or

(b) counsels or procures or aids the commission of an offence under this Act; or

(c) encourages the commission of an offence under this Act; or

(d) is concerned, directly or indirectly, in the commission of an offence under this Act;

(2) The organisation or person is taken to have committed the offence and to be liable to the penalty prescribed for the offence.

(3) This section does not limit the Criminal Code, section 7."

• [70] Section 937 refers to s 7 of the Criminal Code. Section 7 provides:

(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(a) every person who actually does the act or makes the omission which constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

(2) Under subsection (1)(d) the person may be charged either with committing the offence or with counselling or procuring its commission. (3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if the person had done the act or made the omission, the act or omission would have constituted an offence on the person's part, is guilty of an offence of the same kind, and is liable to the same punishment, as if the person had done the act or made the omission; and the person may be charged with doing the act or making the omission."

• [71] All criminal offences in Queensland are statutory. An offence is committed if an offender does an act which the statute prohibits or fails to do an act where the statute imposes a duty upon the person to do the act.[40] Sections 7 and 8[41] of the Code, visit criminal liability upon persons beyond the person doing the act or making the omission, as the case may be.[42]
• [72] Section 937 is a similar provision to s 7 in that it widens the scope of criminal liability beyond that of the actor.
• [73] Section 940 concerns "conduct". Section 937 (and s 7 of the Code) concern the commission of an offence. Section 937 refers to "an organisation or person" where s 940 refers only to "a person".
• [74] If s 940 applies only to the prosecution of criminal offences, then it has no operation at all. That is because the term "party to or concerned in the conduct" is completely consumed by ss 937(1)(a), (b) and (c) (in relation to being a party), and s 937(1)(d) (being concerned). A statute must be construed so that each provision has an effect. The construction of s 940 so that it applies only to proceedings for criminal offences would, as I have explained, give s 940 no legal effect. On its face, the section is not restricted to proceedings for criminal offences and it should be construed accordingly.
• [75] As already observed though, s 940 only applies to "the person". It does not refer to an "organisation" as does s 937. "Organisation" is defined in Schedule 5 as referring to industrial organisations, namely those regulated under Part 12. Given that "organisation" will be a body corporate,[43] a reference to a "person" would, subject to contrary intention, include a reference to an organisation.[44] However, in s 937, the legislature has specifically referred to "an organisation or person" but limited s 940 only to "the person". If s 940 refers to conduct beyond criminal conduct (which in my view it does), there must be real doubt as to whether it applies to the conduct of an organisation. That apparent oddity might be explained though, because there are specific provisions which provide for remedies against organisations as I have already explained.
• [76] In any event, for the reasons I have explained, the scope of operation of s 940 need not be determined on the current appeal.

• [77] As already observed, grounds 2 and 3 overlap with ground 1. There are, as I identified in paragraph [19] of these reasons, seven issues raised by grounds 2 and 3. The first is the submission that the QTU could not engage in strike action as it was, by the definition of "strike", the employees who conducted the strike. I have already dealt with that issue when dealing with ground 1.
• [78] The second submission is there was no evidence to support a finding that there was unprotected industrial action occurring or that the QTU was engaging in it. I have already dealt with this. The evidence was that there were thousands of teachers who voted in favour of withdrawing labour for the purposes of having NAPLAN banned. It is true that there was no express finding that the employees "were engaged in industrial action" and were therefore participating in a "strike", but the Industrial Commissioner has proceeded on the basis that was the case. She expressed the view that the "QTU has engaged in industrial action".[45] That she did not expressly state the findings by reference to the employees, indicates the nature of the true issues before her rather than indicative of error. In the written submissions of the QTU which were before the Industrial Commissioner, the QTU did not:
  1. submit that the conduct of the teachers was not a "strike";[46] or
  2. submit that the industrial action was protected industrial action.
• [79] I will turn now to the other five issues raised.

The Industrial Commissioner failed to properly consider the relevant principles upon consideration of the grant of an interlocutory injunction; the Industrial Commissioner erred in not considering the alleged breach of the joint statement as a discretionary consideration

• [80] These are the third and fourth complaints as I have identified them. It is convenient to consider these two complaints together.
• [81] As already explained, Order 2 made by the Industrial Commissioner was not an interlocutory injunction but an interlocutory order made under s 262(4)(a) of the IR Act. Nothing much turns on that distinction for the purposes of consideration of these particular submissions. The order was made on an interlocutory basis and without there being final findings of fact. There is no reason to think that the general principles applicable to the making of interlocutory injunctions would not apply to the making of an interlocutory order concerning a statutory remedy which prohibits conduct.
• [82] The QTU relies upon Deputy President O'Connor's (as Vice President O'Connor then was) judgment in Electrical Trade Union of Employees Queensland & Ors v Brisbane City Council[47] where his Honour followed McDermott Australia Pty Ltd v Australian Workers' Union.[48] DP O'Connor said:

"[13] The principles relevant to the grant of interlocutory relief by the Commission have been well ventilated. In McDermott Australia Pty Ltd v Australian Workers' Union the principles were set out as follows:

(a) whether there exists a prima facie case; in the sense that, if the evidence remains as it is, there is a probability that, at the trial of the action, the applicant will be held entitled to relief. It is to be recalled that the test does not require that the Court reach a determination that it will be more probable than not that the applicant for an injunction will succeed at trial but merely that there is a sufficient likelihood of success to justify in the circumstances the preservation of the status quo; and

(b) whether the inconvenience or injury that an applicant would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury that the respondent would suffer if an injunction were granted." (Citations omitted)

• [83] His Honour also referred to comments of Merkel J in Transfield Construction Pty Ltd v Automotive, Food, Metal, Engineering, Printed and Kindred Industrial Union[49] and the decision of the Federal Court in Samsung Electronics Company Ltd v Apple Inc & Anor[50] to a similar effect as what was observed in McDermott Australia.
• [84] DP O'Connor's judgment and the decisions cited by his Honour are consistent with the general principles relevant to the granting of interlocutory relief explained in Australian Broadcasting Corporation v O'Neill.[51] However, the grant of both interlocutory or final relief will depend upon the nature of the right being defended. Here, the rights sought to be relied upon by the Department are statutory rights.
• [85] The importance of this was evident in the judgment of Merkel J in Transfield Construction. What was sought there was a mandatory injunction requiring the return to work of members of the industrial organisation named as the respondent. No such order could be made in the equitable jurisdiction of the court absent statutory provisions. Equity will not order specific performance of a contract for labour.[52]
• [86] The IR Act specifically provides that an order can be made that strike action cease and injunctions can also be granted. The effect of this is to require a return to work and therefore the provision of labour. That led Merkel J in Transfield, considering an equivalent section in the Workplace Relations Act 1996 (Cth), to say:

"It is now well established that in considering whether an interim injunction is 'desirable' under s 127(7) the Court is required to consider whether the applicant for the order has established that there is a serious issue to be tried in respect of its entitlement to a final injunction under s 127(6) and whether the balance of convenience favours the making of the orders sought. It is also well established that the strength of the prima facie case for relief of an applicant will be relevant to the balance of convenience: see for example Australian Paper Limited v Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (1998) 81 IR 15 at 17-18 and ACI Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2000) 173 ALR 109 at 117. Further, the traditional reluctance of the Court to make interlocutory mandatory orders, including ordering employees to return to work, may not apply to conduct which, prima facie, is in breach of the Act: see Amcor Packaging (Australia) Pty Ltd v Automotive, Food, Metals, Engineering and Kindred Industries Union [2002] FCA 127 ('Amcor Packaging') at [11]-[12]."[53]

• [87] Here, the IR Act regulates the circumstances in which industrial action may be taken. Here, for the reasons already explained, industrial action has occurred. The QTU did not argue that the industrial action was protected. Therefore, there is a clear breach of the IR Act.
• [88] Against that, the QTU submits that the Industrial Commissioner:
  1. did not turn her mind to whether there was a prima facie case and where the balance of convenience lay;
  2. did not take into account that the Department had breached the joint statement and therefore came without clean hands;
  3. did not give proper reasons.[54]
• [89] All these complaints raise issues as to obligations of the Industrial Commissioner to give adequate reasons.
• [90] In Soulemezis v Dudley (Holdings) Pty Ltd,[55] McHugh JA (as his Honour then was) identified three purposes served by the judicial duty to give reasons:
  1. It enabled the parties to appreciate the extent to which their arguments have been understood and accepted or rejected as the case may be.
  2. It shows the basis of the judge's decision.
  3. It provides a precedent.
• [91] The detail and extent of reasons which must be given will depend upon the circumstances of the case.[56] In Cypressvale Pty Ltd v Retail Lease Tribunal,[57] McPherson and Davies JJA reviewed various cases where attempts had been made to precisely formulate the extent of the judicial obligation to give reasons.[58] Ultimately, their Honours found that the adequacy of reasons in any particular case must be judged against the purposes of giving reasons as identified by McHugh JA in Soulemezis.[59]
• [92] Crystal Dawn Pty Ltd v Redruth Pty Ltd[60] was a case where reasons were not given at all. Muir J (as his Honour then was), with whom Pincus JA and Williams J agreed, observed:

"17 The obligation to give reasons may be affected by the way in which proceedings are conducted. For example, the primary judge may indicate that it is not proposed that reasons be given and there may be a tacit acceptance of this by counsel for the parties. For a discussion of qualifications to the general duty to give reasons see the observations of Mahoney P in Kiama Constructions v Davey (1996) 40 NSWLR 639 at 640. In this case there is no suggestion that there was anything in the way in which the matter was conducted which would lead to the conclusion that the normal principles or expectations in respect of the giving of reasons would not apply. Without wishing to limit the general obligation to give reasons, even on interlocutory matters, I note that the decision under consideration had the potential to prevent the applicants from pursuing the action and was thus one in respect of which reasons should have been given."

• [93] Clearly, where reasons are given, as in this case, the adequacy of the reasons are gauged against the circumstances of the case and in particular the real issues identified by the parties.
• [94] The Industrial Commissioner found that unprotected industrial action was being conducted by almost 8,000 government employees in the critical area of school teaching. Obviously then, the discretion to make orders under s 262(4) of the IR Act arose. The Industrial Commissioner was faced with the prospect of exercising a discretion and specifically referred to each of the arguments raised by the QTU.[61]
• [95] It is submitted by the QTU on appeal that while the Industrial Commissioner referred to the alleged breach of the joint statement in making various findings, she did not refer to it as a discretionary ground. However, she was not obliged to do so. As Basten JA, in Lo v Chief Commissioner of State Revenue[62] observed:

"9 The 'something more' requires reference to the dual concepts of 'relevant considerations' and 'taking into account'. The term 'relevant considerations' is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J) it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be 'mandatory consideration'. Further, a matter traditionally described as an 'irrelevant consideration' is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law."

• [96] There is nothing, in my view, in s 262(4) or otherwise in the IR Act which would oblige the Industrial Commissioner to take the joint statement into account. In any event, as already observed, the submissions of the QTU were meticulously recorded in the judgment. The Industrial Commissioner was not obliged to deal with each of them in the sense of explaining how she took each of them into account. The matters which she regarded as important in exercise of discretion were dealt with in her reasons. That included dealing with the submissions concerning the joint statement. There, she said:

"[37] The QTU's contentions about the joint statement not being complied with have limited relevance to the resolution of whether or not unprotected industrial action has been engaged in. It is open to them to pursue that matter by alternative means. However, even taking those submissions at their highest would not render the industrial action 'protected' within the meaning of the IR Act. Nor do they obviate the appropriateness of the cessation of that unprotected industrial action, in circumstances where the purported breaches of that Joint Statement relate to the implementation of the NAPLAN program or the use of data arising from that testing. The utility of the NAPLAN program is not relevant to the resolution of this dispute." (emphasis added)

• [97] While the Industrial Commissioner considered the joint statement as relevant to whether industrial action was "protected", she also took it into account in exercise of discretion. In that respect, see the passage I have emphasised above. Reference to "appropriateness of the cessation of that unprotected industrial action" is clearly a discretionary consideration.
• [98] When the Industrial Commissioner's reasons are properly and reasonably considered, it is obvious that she:
  1. properly found that the strike was not protected industrial action;
  2. weighed that fact against all the discretionary features submitted by the QTU as relevant, including the alleged breach of the joint statement by the Department;
  3. concluded that a limited remedy, namely that under s 262(4)(a) should be granted but injunctive relief should not be granted.
• [99] Subject to the discrete issue of whether a finding that industrial action was continuing (which I deal with below), no error is shown in the exercise of discretion to make the orders made by the Industrial Commissioner.

There was no identified need for the orders. The finding that there was ongoing industrial action was not open.

• [100] This is the fifth complaint.
• [101] At paragraph [35] of the Industrial Commissioner's reasons, she said:

"[35] There is sufficient material before me to conclude, on an interim basis, that unprotected industrial action has occurred and is ongoing. Whether or not there may be further developments in government policies is not relevant at this stage."

• [102] This finding is challenged. The QTU submits that the only evidence that the industrial action was ongoing was that the participation rate in the school readiness test was 14 schools out of a possible 952. The QTU submitted that without evidence of what the usual participation rate was, the figure is meaningless and therefore the evidence does not support the finding.
• [103] The submission confuses the existence of industrial action with its consequences. As was strongly submitted by the QTU, the term "strike" is "the conduct of 2 or more employees" which, relevantly, is "a ban, restriction or limitation on the performance of work ..." with the motivation "to compel or induce an employer to agree to employment conditions". Here, 8,000-odd employees have resolved that all members of the QTU should stop work on NAPLAN in order to induce the Department to abandon NAPLAN. That is clearly industrial action. In the absence of any evidence suggesting that the strike has been abandoned, it is fair to say that the industrial action is "ongoing".

• [104] This is the sixth complaint.
• [105] As I have already explained, the Industrial Commissioner was obliged to give reasons, she did so and the reasons explained sufficiently why she took the course that she did. Particularly though, the QTU made this submission:

"... The Commissioner failed to give reasons as to why order 3 was made, and why order 3 was "appropriate for prevention of, or prompt settlement of the dispute" as provided by s 262(4) of the IR Act. Order 3 is the one directing the QTU to communicate the contents of orders 1 and 2 to their members by 9.00 am, 9 December 2020."

• [106] I have already set out paragraph [40] of the Industrial Commissioner's reasons where she stated that she didn't consider that the making of injunctions was appropriate.[63] Her Honour then said:

"[41] It is sufficient at this stage to Direct that, until further order, the industrial action cease, and not recommence. The QTU will also be required to communicate that information to their members. There is no reason to expect the QTU will not act in good faith and comply with those Directions. It appears to me that their members have always previously engaged in NAPLAN as directed by the Department. No doubt the QTU appreciates the ramifications of breaching an order in any event."

• [107] True it is that her Honour does not give specific reasons for directing that the QTU communicate the orders to its members. But when the reasons are viewed sensibly in the context of the application that had been made by the Department, it is obvious why her Honour made the orders she did.
• [108] The Department sought orders contained in a document "Applicant's Proposed Order". That appears in these reasons in paragraph [9]. Paragraph 1 of the proposed orders sought an order pursuant to s 262(4)(a). Paragraphs 3, 4, 5, 6 and 7 all sought injunctions, namely orders against the QTU and its officers. Paragraph 8 sought orders (perhaps strangely) that the Department would distribute the orders to the teachers.
• [109] The Industrial Commissioner, having found that it was appropriate to make an order under s 262(4)(a), but having elected not to grant injunctions, considered and settled upon a method of having the order perfected, namely that it be advised to the teachers. No error is shown.

In making Order 3 the Industrial Commissioner did not afford the QTU natural justice

• [110] This is the seventh and last complaint.
• [111] Order 2 is the order to stop unprotected industrial action. Order 3 is the direction to the QTU to communicate the content of Orders 1 and 2 to its members.
• [112] There can be no serious suggestion that natural justice has not been afforded to the QTU in relation to Order 2. The order that was made was specifically sought in the application filed by the Department.
• [113] The same cannot be said in relation to Order 3. In the application, the Department actually sought an order that it be the Department who communicates the information to the teachers.
• [114] However, Order 3 was not complied with. On 22 December 2020, I stayed the proceedings before the Full Bench and directed that the QTU, by 4.00 pm on 8 January 2021, communicate the content of the orders made by the Industrial Commissioner on 8 December 2020 and the orders made by me on 22 December. Order 3 has been overtaken by the orders made on 22 December 2020. It is not necessary to consider the issue further.

• [115] This ground is based on s 473(3). That subsection applies where an injunction has been given. Where an injunction has been made, the Commission must make orders how "notice of" and "service of" the injunction must be made "on each of the persons to whom the injunction applies". For the reasons already explained, the Industrial Commissioner did not make injunctions. She made an order under s 262(4)(a). That was Order 2 made by the Industrial Commissioner. There was therefore no occasion to make an order under s 473(3). However, ancillary to the making of an order under s 262(4)(a), the Industrial Commissioner made an order ensuring that the fact of Order 2 (and Order 1) be communicated to the members of the QTU. There is ample jurisdiction to make such an order.[64] No error is shown.
• [116] Ground 4 is not made out.

• [117] Order 2 made by the Industrial Commissioner described the unprotected industrial action as "namely the ban on engaging in NAPLAN contained in the QTU's directive issued 7 October 2020". It seemed to me that as the Department had relied specifically upon the directive, the words of the directive itself ought to be contained within the order. I therefore varied Order 2 accordingly.
• [118] Orders 3 and 4 were made in aid of enforcing Order 2.
• [119] The matter will now return to the Queensland Industrial Relations Commission so it was appropriate to make Order 5. Otherwise, the appeal fails which explains Order 6. The parties agreed there should be no order as to costs which explains Order 7.

[1] Pursuant to Australian Education Act 2013 (Cth), s 77, Australian Education Regulations 2013 (Cth), reg 43.

[3] QTU's written submissions filed in the QIRC on 2 December 2020, paragraph [2].

[4] Paragraph 1 of the Department's application, Order 2 made by the QIRC on 16 December 2020.

[5] QTU's written submissions filed in the QIRC on 2 December 2020, paragraphs [21]-[24]; State of Queensland (Department of Education) v Queensland Teachers Union of Employees [2020] QIRC 212 at [11] and [20]-[31].

[6] QTU's written submissions filed in the QIRC on 2 December 2020, heading "Premature application" and indirectly "Dispute resolution", paragraphs [1]-[5] and [25]-[27].

[7] QTU's written submissions filed in the QIRC on 2 December 2020, heading "Joint statement breaches", paragraphs [6]-[13].

[8] QTU's written submissions filed in the QIRC on 2 December 2020, heading "Impact on Workplace Health and Safety of teachers and students", paragraphs [14]-[20].

[9] State of Queensland (Department of Education) v Queensland Teachers Union of Employees [2020] QIRC 212 at [5].

[10] Haritos v Commissioner of Taxation [2015] FCAFC 92; (2015) 233 FCR 315, Abdel-Messih v Marshall [2018] NSWSC 648 and Gan v Shop 3, 228-230 Hanvaylee Parade Kingston Pty Ltd [2017] NSWSC 1322.

[11] QTU's written submissions filed in the Court on 18 December 2020, paragraphs 10-27.

[12] QTU's written submissions filed in the Court on 18 December 2020, paragraphs 13 and 14.

[13] QTU's written submissions filed in the Court on 18 December 2020, paragraphs 13 and 21.

[14] QTU's written submissions filed in the Court on 18 December 2020, paragraphs 15 and 16.

[15] QTU's written submissions filed in the Court on 18 December 2020, paragraphs 19 and 20.

[16] QTU's written submissions filed in the Court on 18 December 2020, paragraph 22.

[17] It is a matter of contention as to whether the orders were injunctions.

[18] [2020] ICQ 024.

[19] Industrial Relations Act 2016, ss 448, 451, 262.

[20] The comment in paragraph [40] of the Industrial Commissioner's judgment.

[21] See paragraph [9] of these reasons.

[22] See definition of "lockout", Industrial Relations Act 2016, s 6 and Schedule 5, Dictionary.

[23] Defined in s 233(7) to include an employee organisation.

[24] Section 611.

[25] Paragraph [30] of these reasons.

[26] Paragraph [30] of these reasons.

[27] Section 265(1).

[28] Norseman Amalgamated Distress and Injustices Fund v The Commissioner of Taxation of the Commonwealth of Australia [1995] FCA 1159.

[29] Trade Union Act 1915, s 28(1), Industrial Conciliation and Arbitration Act 1961, s 72, Industrial Arbitration Act 1916, s 4, Industrial Conciliation and Arbitration Act 1932, s 4, Industrial Relations Act 1990, s 5, Industrial Relations Act 1999, Schedule 5.

[31] The opening lines of the definition of "strike".

[32] Definition of "strike", paragraph (a)(iv).

[33] Definition of "strike", paragraph (b)(iii).

[34] Industrial Relations Act 2016, definition of "strike", paragraph 3(a).

[35] State of Queensland (Department of Education) v Queensland Teachers Union of Employees [2020] QIRC 212 at [27]- [30].

[36] Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355 at [78], SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14] and [35]-[40], The Queen v Magennis; The Queen v Vaziri [2019] HCA 35; (2019) 93 ALJR 1106 at [32], Westpac Securities Administration Ltd v Australian v Australian Securities and Investments Commission [2021] HCA 3 at [54].

[37] Acts Interpretation Act 1954, s 35C.

[38] Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17; (1990) 169 CLR 594, and for a different type of case see Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11; (1978) 140 CLR 216 and K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309.

[39] K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309.

[40] Criminal Code; definition of "offence", s 2; and see The Queen v Barlow (1997) 188 CLR 1.

[41] It is not necessary to examine s 8.

[42] For an explanation of the structure of the parties provisions of the Code, see the seminal judgment of Gibbs J (as his Honour then was), Stuart v The Queen [1974] HCA 54; (1974) 134 CLR 426 at 435-445.

[43] Industrial Relations Act 2016, s 611.

[44] Acts Interpretation Act 1954, s 32D.

[45] State of Queensland (Department of Education) v Queensland Teachers Union of Employees [2020] QIRC 212 at [32].

[46] Subject to the point made about the risk of NAPLAN to health and safety.

[47] [2017] QIRC 90.

[48] [2011] FCA 303.

[49] [2002] FCA 1413.

[51] [2006] HCA 46; (2006) 227 CLR 57 at [19] and [65]-[72].

[52] Williamson v Lukey [1931] HCA 15; (1931) 45 CLR 282 at 298.

[54] A failure to give adequate reasons is also relevant to another complaint.

[55] (1987) 10 NSWLR 247.

[56] Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1995] QCA 187; [1996] 2 Qd R 462 at 482, citing Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8 at 18 and In Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 381.

[57] [1995] QCA 187; [1996] 2 Qd R 462.

[60] [1998] QCA 373.

[61] State of Queensland (Department of Education) v Queensland Teachers Union of Employees [2020] QIRC 212 at [11].

[62] [2013] NSWCA 180.

[63] Paragraph [26]-[33] of these reasons.