On 23 June 2022 a notification of industrial dispute pursuant to s 130 of the Industrial Relations Act 1996 was filed in the Industrial Registry by the Secretary of the Department of Education, herein called the Notification.
The Notification sought the Commission's urgent assistance in relation to threatened industrial action in the nature of a one day stoppage programmed for 30 June 2022. The stoppage would be a stoppage of work by members of the Australian Education Union of New South Wales, Teachers Federation NSWTF branch, herein the Federation
The Commission as currently constituted listed the matter for urgent conciliation at 5.30pm on 23 June 2022. As a result of the conciliation the parties agreed to meet the following day, Friday 24 June 2022, for the purpose of trying to resolve the dispute. At 2.30pm on that Friday, the notifier, along with Ms Archibald and someone else met with representatives of the Federation.
The matter was listed for report back this morning at 10am before the Commission.
At the report back, the Commission was informed that there was no offer made by the notifier to the Federation regarding the Federation's claim for a 5% wage increase. The Commission was further informed that the secretary had told the Federation that it was considering the content and ramifications of the recently promulgated Industrial Relations (Public Sector Conditions of Employment) and Regulation 2022, herein referred to as the 2022 Regulation.
Further conciliation then occurred, during the course of which, it was ascertained that sub cl 6(1A) and 6A(5) of the 2022 Regulation provided a possibility of an increase in advance of the increases specified earlier in the 2022 Regulation subject to the employer agreeing.
The further conciliation was unsuccessful, and a Certificate of Attempted Conciliation was issued. Neither party sought to exercise their right under s 173 of the Act and the matter moved through to arbitration following the luncheon adjournment.
The notifier sought seven orders pursuant to s 137 and two recommendations which buttressed these proposed orders pursuant to s 136(1) and 163 of the Act.
At the beginning of the arbitration, the notifier read the affidavit of Ms Clare Jessica Archibald of 24 June 2022 along with a referenced exhibit of 172 pages. This was read into evidence and some further evidence‑in‑chief was provided by Ms Archibald, primarily in relation to school term dates.
Ms Archibald was cross‑examined by the respondent and questions were put and answers provided concerning Ms Archibald's understanding of the 2022 Regulation and what steps had been taken by the notifier in relation to the 2022 Regulation.
The respondent did not tender any evidence.
The notifier's submissions in effect, was that the Commission should exercise its discretion to make the orders which were sought along with the recommendations. The notifier submitted that in considering whether to exercise its' discretion the Commission is bound to take into account the objects of the Industrial Relations Act 1996 at s 3 and in particular paras 3(a) and (b) and to a lesser extent but also para (g) of s 3. Also, it was submitted that this is buttressed by ss 146(2) which requires the objects to be taken into account on the public interest grounds and including the likely effect on the state of the economy.
In relation to the 24 hour stoppage to take place on 30 June 2022, the notifier submitted that the likely impacts are to be found in the evidence of Ms Archibald, in particular paras 88 through to 97 of that affidavit. It was submitted that Ms Archibald's evidence of this impact or these impacts should be accepted given her position within the notifier's operations and the length of service and discussions that she allegedly had which are with various principals and persons within the notifier's operations which were listed at paragraphs (15) and (52) of her affidavit.
It was further submitted that the Commission was entitled to take judicial notice of the alleged likely impacts of the proposed action as set out in the affidavit of Ms Archibald.
As to the walkouts, that being the form of industrial action which took the form on some three different dates and different operations of the notifier historically, with the last being on 26 May 2022, and set out in the affidavit of Ms Archibald the notifier submitted that the evidence in support of the likelihood of this occurring again, by reference to correspondence between Ms Archibald and the respondent as well as the fact that this had occurred on a number of occasions prior to the matter being listed.
There was some evidence as to the level of impact of the walkout, industrial disputation, but no real explanation of this impact other than the amount of classes affected.
Another matter was identified by the notifier as to why the Commission should exercise its discretion. And that is that the relevant award, which is listed for hearing sometime later this year, and analogy was made to that factor being taken into account by Commissioner Sloan in the matter of Industrial Relations Secretary and Public Service Association and Professional Officers Association Amalgamated Union of New South Wales (2022) NSW IR Comm 1042 at paragraphs (44). That was a reference to the school psychologist for whom Commissioner Sloan was minded to make dispute orders against.
In short, the notifier submitted that in applying the statutory test the likely effects of the stoppages favour the Commission exercising its discretion in making the orders that are sought.
In terms of the nature of the orders or the form that the orders should take the notifier submitted that the multiplicity of orders as sought, which was seven forms of orders along with two recommendations, is appropriate given the nature of the industrial action as it was to occur across a large number of schools and to the effect that that was necessary to ensure that the full range of gambit of industrial action would be taken account of.
As to the length of the orders as proposed by the notifier, the submission and support of why it should be to the date that it was sought, which was to 4pm 20 December 2022 was that that this accorded to the end of the school term and that it would provide some certainty to students, teachers and the Department alike.
With respect to the submissions of the respondent, it was firstly put that the evidence of Ms Archibald as to the effects of the proposed action is speculative and it should be put no higher than that.
The respondent, of course, opposed that any orders should be made but made some supplementary submissions which I will touch on later on in the event that the Commission was minded to exercise a discretion that those orders should be somewhat shorter than what was being sought.
In terms of the exercise of the Commission's discretion of which the respondent touched on, firstly, not chronologically, it was put this way, but it was conceded and rightly so, that there will be likely ramifications as a result of the industrial action, and that was to be expected, and memory serves me correct it might have also been put that that was partly the intent of the form of industrial action.
However, in terms of assessing whether the exercise of the discretion should be undertaken by the Commission, the respondent noted that there is currently not in existence an effective no extra claims clause which is to be contrasted when the notifier previously sought dispute orders pursuant to s 137 before the Commission as currently constituted which on that occasion there was an Award in place. It was also submitted that the making of an order as sought would be an exercise of discretion contrary to the long-standing internationally recognised right to strike, and it was put that that is a strong factor which weighs against the exercise of the discretion to make an order.
The respondent in a supplementary submission urged the Commission that if it was to exercise its discretion to make orders that it should not do so in the fashion sought by the notifier, rather it should be if it was to be undertaken be in a fashion similar to those orders made by, again, Commissioner Sloan in a matter, I do not have the citation but the matter number which is 2022/184903 which is a s 130 dispute notification by the Health Secretary and New South Wales Nurses Midwives Association on 25 June 2022, which in short was three orders under 136 and 137 with a number of ancillary directions to put in place those orders.
In terms of considering whether the Commission is going to exercise its discretion I have determined that the Commission will exercise its' discretion, but in a limited fashion to make orders in relation to school counsellors, and the form of those orders should be in a form similar to that made by Commissioner Sloan in matter 2022/184903.
Given the time that we are at I would direct that the parties confer as a matter of urgency and either provide a set of consent orders that give effect to that decision say by 10am tomorrow morning, and if they cannot, alternative sets of orders, and I will undertake to have the matter listed as soon as I can, bearing in mind my diary tomorrow if there is a difference between the parties.
In terms of reaching that decision I have considered the evidence of Ms Archibald, and I accept that there will be some adverse impact as noted by her in her affidavit. But I do not accept that it will be to the extent as set out in that affidavit.
It is possible that it may be some of those effects come into place, and the one that troubles me the most and is the reason for why I have exercised the discretion in the manner that I have is based on what is set out at para 91 of Ms Archibald's affidavit.
Having considered the decision of Commissioner Sloan, in if I can shortly call it the PSA matter, I determine that the school counsellors, similar to Commissioner Sloan, fall into the safety and welfare category. Now, it is something that was conceded by the respondent in terms of questions put by myself, and rightly so, in those circumstances I think it is appropriate the discretion is exercised for those particular members of the Federation given the concerns that have been set out by Ms Archibald.
I have also had regard to the fact that there is no programmed conciliation before this Commission in relation to the wages claim of the Federation. Now in terms of the previous orders that were made they were made in circumstances where there was to be conciliation conducted before Commissioner Webster. Furthermore, and I agree with the submissions to a limited extent of the respondent in terms of the exercise of the discretion would interfere with the submitted rights recognised internationally to strike.
In the absence of any submissions from the notifier that there is in fact no provision or any provision that prohibits the right to strike I am left in the position of considering that there is substance to the respondent's submissions with respect to the existence of the international rights, and I note the written submissions in the cases as set out by the respondent in that regard.
As to the matter of the walkouts, broadly described in the orders, and also referred to as such in the submissions of the parties, I am not satisfied that there is sufficient evidence that this is pending probable more likely to occur in the short instance. I note that if there was to be further evidence to suggest that it is likely to occur into the future then the notifier has its rights to notify a fresh dispute and seek orders in that regard.
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Decision last updated: 08 July 2022
Parties
Applicant/Plaintiff:
Secretary Department of Education
Respondent/Defendant:
Australian Education Union of New South Wales Teachers Federation Branch