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Queensland Teachers Union of Employees v State of Queensland (Department of Education)[2020] ICQ 24

Queensland Teachers Union of Employees v State of Queensland (Department of Education)[2020] ICQ 24

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

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

PARTIES:

QUEENSLAND TEACHERS UNION OF EMPLOYEES

(appellant)

v

STATE OF QUEENSLAND (DEPARTMENT OF EDUCATION)

(respondent)

FILE NO/S:

C/2020/22

PROCEEDING:

Appeal

DELIVERED ON:

22 December 2020, ex tempore

HEARING DATE:

22 December 2020

MEMBER:

Davis J, President

ORDERS:

  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.
  2. 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.
  3. 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.
  4. By 4.00 pm on 14 January 2021, the respondent is to file and serve any further written submissions on the appeal.
  5. By 4.00 pm on 19 January 2021, the appellant is to file and serve any written submission in reply.
  6. The appeal is listed for hearing at 10.00 am on 21 January 2021.
  7. 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.
  8. There be liberty to apply.
  9. Costs reserved.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – INDUSTRIAL ORGANISATIONS – where the respondent union issued a directive to its members to cease certain work – where the respondent alleges the applicant engaged in unprotected industrial action – whether unprotected industrial action occurred – whether an industrial organisation can engage in industrial action

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS, OTHER MATTERS – Interlocutory injunctions – where interlocutory orders were sought preventing strike action subject to final determination – whether orders were appropriate

Australian Education Act 2013 (Cth)

Australian Education Regulations 2013 (Cth)

Industrial Relations Act 2016, s 233, s 234, s 262, s 424, s 473, s 557, s 937, s 940

CASES:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, cited

Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685, cited

Elphick v MMI General Insurance Limited [2002] QCA 347, cited

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, cited

South Australia v The Commonwealth (1942) 65 CLR 373, cited

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

State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Weston [2016] ICQ 13, cited

SZTAL v The Minister for Immigration and Border Protection (2017) 91 ALJR 936, cited

Victoria v The Commonwealth (1957) 99 CLR 575, cited

COUNSEL:

T O'Brien for the appellant

J E Murdoch QC for the respondent

SOLICITORS:

Holding Redlich for the appellant

GR Cooper, Crown Solicitor for the respondent

  1. [1]
    This is an application by the Queensland Teachers Union, which I will call for convenience “the QTU”, to stay the operation of what are, essentially, injunctions made by the Queensland Industrial Relations Commission which I’ll refer to as “the QIRC”.  The orders were made on 8 December 2020 and reasons were published 16 December.
  2. [2]
    The relevant background is explained in some detail by Industrial Commissioner McLennan in her reasons published as State of Queensland (Department of Education) v Queensland Teachers Union of Employees,[1] and it is, therefore, unnecessary to delve into the facts in any detail. 
  3. [3]
    The dispute concerns the National Assessment Program – Literacy and Numeracy, which is commonly called “NAPLAN”.  NAPLAN is a creature invented by the Commonwealth.[2]
  4. [4]
    The two uniform tax cases, being South Australia v The Commonwealth[3] and Victoria v The Commonwealth[4] effectively granted fiscal control of the country to the Commonwealth Government.  NAPLAN is an example of that in operation as compliance with NAPLAN is a prerequisite for Commonwealth funding of Queensland education. 
  5. [5]
    The practice testing of Queensland students is to occur in March and April 2021, and the actual test is to occur on 11 May 2021.  Before March, work must be done by Queensland teachers preparing for the various tests.
  6. [6]
    The QTU and its members have deep-seated concerns with NAPLAN.  There are many issues, including, worryingly, that QTU members, being teachers of children, report that children experience increased anxiety related to NAPLAN. 
  7. [7]
    This long-running dispute as to policy resulted in a “joint statement” being made between the State and the QTU.  The relevant parts of the joint statement are referred to in the QTU’s written submissions before the QIRC, to which I will later refer.  On 7 October 2020, the QTU issued to its members:
  1. a directive;
  2. a “newsflash”. 
  1. [8]
    The directive was in these terms:

“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.”

  1. [9]
    The newsflash explained various things to QTU members, including that 94 per cent of those members who voted (more than 8,000 teachers) on a resolution to ban NAPLAN, supported the resolution.  It also set out what activity is to be banned.  That was:

“What does banning NAPLAN mean?

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 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 QUT members, irrespective of whether they participated in the recent ballot. The QUT’s message for the past few years has been clear - NAPLAN in all its forms must go.”

  1. [10]
    Before Industrial Commissioner McLennan, the QTU relied on written submissions filed 2 December 2020 concerning the joint statement.  Paragraphs 6 to 11 of those submissions provide as follows:

“[6] The Joint Statement declares under the heading of ‘Student wellbeing’

‘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 test is not necessary nor useful.’ Familiarisation activities should not 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.’

[7] The Joint Statement specifically outlines limited preparation in close proximity to the test. Notwithstanding the scheduled testing in May 2021, the QTU notes that as recently as Monday 23 November (after the Dispute was lodged by DoE), the QTU commenced dispute resolution proceedings ,with South East Region, due to the continued insistence by Assistant Regional Directors that NAPLAN preparations and pretesting are somehow exempt from the Joint Statement (see Attachment B - E-QTU and DoE re NAPLAN testing dated 23 November 2020 and Joint Statement).

[8] Of particular concern are the dates disclosed by DoE at the conciliation conference of this matter dated 27 November 2020, namely 27 January 2021 data entry/testing, 4 February 2021 data entry/testing, protocol training in March 2021, testing - week 9, practice testing on 22 and 23 April 2021. All of these events are to be undertaken by teachers and students in schools. On 30 November 2020, Executive advised that not one of these events had been communicated to Executive for consideration as to their necessity, given the effect of the Joint Statement. These matters must be negotiated with the QTU.

[9] The Joint Statement notably provides the following under ‘Use of NAPLAN data’

‘A student’s NAPLAN data should not influence a school’s decision to enrol a prospective student ...”

[10] On 29 November 2020, a cursory review of state high schools in a variety of regions indicates that schools are actively requiring NAPLAN data as part of their decision making process to enrol a prospective student (see Attachment C - E‑QTU re NAPLAN JS and use of data at enrolment 29 November 2020). At no stage since the signing of the Joint Statement has DoE undertaken to ensure schools do not use this data at enrolment.

[11] NAPLAN data remains an ongoing feature of recruitment and selection processes of streams 2 and 3 applicants in state schools. At no time has DoE, as the employer, adhered to the joint statement by removing or explicitly directing panels not to seek such data from applicants.”

  1. [11]
    While the joint statement provides that the parties do not endorse repeated or regular NAPLAN practice tests, that is what the QTU alleges is being implemented by the Department.  The QTU’s complaints were explained by Industrial Commissioner McLennan in paragraph 11 of her reasons as:

“The QTU is particularly concerned with several planned aspects of NAPLAN – NAPLAN preparation, including:  27 January 2021, date entry/testing, 4 February 2021 data entry-testing, protocol training in March 2021, testing in week 9 of the school term and practice testing on 22 and 23 April 2021.  Those matters have not been negotiated with the QTU.”

  1. [12]
    I’ll turn now to the application which was before Industrial Commissioner McLennan.  The Department argued that the directive constituted unprotected industrial action as defined by s 234 of the Industrial Relations Act 2016.  I’ll refer to the Act as “the IR Act”.  It sought injunctive relief under section 473 of the IR Act.  The QTU raised various issues in defence and these are set out in detail in the reasons of Industrial Commissioner McLennan.
  2. [13]
    Importantly, it was argued that:
  1. NAPLAN preparation is not part of teaching and not part of the duties of Queensland teachers, so by definition the withdrawal of labour to achieve those things is not strike action;
  2. for various discretionary reasons no order should be made; and
  3. the orders sought were too wide.
  1. [14]
    Industrial Commissioner McLennan regarded the hearing before her as an interim hearing.  She did not purport to finally deal with the Department’s application.  She found:
  1. NAPLAN preparation was work which QTU members were employed to do, as was NAPLAN testing;
  2. the directive constituted unprotected industrial action.
  1. [15]
    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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.”
  1. [16]
    What is sought in the present application is:

“That the Orders contained in the decision in D/2020/135 issued by the Queensland Industrial Relations Commission on 8 December 2020[5] be stayed until further Order of the Commission and the hearing of the Notice to Show Cause listed for hearing on 22 December, and the associated directions, be adjourned subject to determination of the appeal.”

  1. [17]
    The appeal is brought pursuant to s 557 of the IR Act.  There is no doubt that the court has jurisdiction to grant a stay of the orders pending appeal.[6]  There have been many cases which have considered the exercise of the discretion to grant a stay.  Some have been cited in argument by the Department.  See, for instance, Elphick v MMI General Insurance Limited,[7] Alexander v Cambridge Credit Corporation Limited[8] and a decision of this court in the State of Queensland (Department of Justice and Attorney-General) v Siobhan Maree Weston.[9]
  2. [18]
    It is unnecessary in the present case to conduct a detailed analysis of the principles.  The purpose of a stay is to preserve the status quo pending appeal.  As the stay interferes with rights secured at first instance by the respondent to a stay application, it follows that the strength or otherwise of the grounds of appeal is a significant factor, as is the balance of convenience and the competing rights of the parties that are sought to be advanced in the litigation. 
  3. [19]
    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.
  2. The Commissioner erred in law by issuing a direction to the QTU pursuant to s 262(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.
  3. The Commissioner erred in law by issuing a direction to the QTU pursuant to s 262(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.
  4. The Commissioner erred in law by issuing an injunction directed against the QTU without complying with the obligation in s 473(3) to determine how notice and service of the injunction was to be given to the QTU.
  1. [20]
    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 may contain a typographical error.  It seems obvious that the word “not” should appear before the word “capable”. 
  2. [21]
    Grounds 1 and 2 both rely on a common submission, namely that an industrial organisation cannot engage in “industrial action”, as defined by the IR Act.  The notion that a union cannot, as a matter of law, be engaged in industrial action is a strange one, but the argument turns on the specific provisions of the IR Act.  Sections 233 and 234 concern protected industrial action and unprotected industrial action respectively.  The sections provide:

“233 When industrial action is protected industrial action

  1. (1)
    Industrial action is protected industrial action for a proposed bargaining instrument if the industrial action—
  1. (a)
    meets the requirements of this section; and
  1. (b)
    is not industrial action to which section 234 applies.
  1. (2)
    The industrial action must be—
  1. (a)
    organised, or engaged in, by a protected person for the purpose of—
  1. (i)
    supporting or advancing claims made in relation to the proposed instrument; or
  1. (ii)
    responding to industrial action mentioned in paragraph (b)(i) by an employer who will be covered by the proposed instrument; or
  1. (b)
    organised, or engaged in, by an employer who will be covered by the proposed instrument for the purpose of—
  1. (i)
    supporting or advancing claims made in relation to the proposed instrument; or
  1. (ii)
    responding to industrial action mentioned in paragraph (a)(i) by an employee who will be covered by the proposed instrument.
  1. (3)
    The following persons have not contravened, before the industrial action starts, the requirement to negotiate in good faith under section 173—
  1. (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;
  1. (b)
    if the industrial action is a lockout by an employer who will be covered by the proposed instrument—the employer.
  1. (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.
  1. (5)
    Before the industrial action is engaged in, notice of the industrial action must have been given under section 236.
  1. (6)
    The industrial action may be engaged in during conciliation for the proposed bargaining instrument.

Note—

However, see sections 240 and 241.

  1. (7)
    In this section—

protected person, for a proposed bargaining instrument, means—

  1. (a)
    an employee organisation that is a negotiating party for the proposed instrument; or
  1. (b)
    an officer or employee of that employee organisation acting in that capacity; or
  1. (c)
    an employee who is a member of that employee organisation and will be covered by the proposed instrument. 234

234 When industrial action is not protected industrial action

  1. (1)
    Industrial action is not protected industrial action for a proposed bargaining instrument if the industrial action is engaged in—
  1. (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
  1. (b)
    during any peace obligation period for the proposed instrument.
  1. (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.
  1. (3)
    The following persons must not engage in industrial action to which subsection (1) or (2) applies—
  1. (a)
    an employee who will be covered by the proposed instrument;
  1. (b)
    an employee organisation that is a negotiating party for the proposed instrument;
  1. (c)
    an officer or employee of that employee organisation acting in that capacity;
  1. (d)
    an employer who will be covered by the proposed instrument.

Note—

This subsection is a civil penalty provision.”

  1. [22]
    The term “industrial action” is defined in the dictionary, which is schedule 5 of the IR Act as:

“industrial action means a lockout or strike.”

  1. [23]
    The terms “lockout” and “strike” are also defined.  A lockout is not alleged here.  The term “strike” is defined in a complicated way as follows:

“strike—

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

  1. (a)
    the conduct is any of the following—
  1. (i)
    a wilful failure to perform work required under the employees’ employment contracts;
  1. (ii)
    the performance of work by the employees in a way that it is not customarily performed;
  1. (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;
  1. (iv)
    a ban, restriction or limitation on the performance of work or accepting or offering work;
  1. (v)
    a wilful failure of the employees to attend work that is not allowed by the employer;
  1. (vi)
    a wilful failure of the employees to perform work in a way that is not allowed by the employer; and
  1. (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—
  1. (i)
    to compel or induce an employer to agree to employment conditions;
  1. (ii)
    to compel or induce an employer to employ or stop employing a person or class of persons;
  1. (iii)
    to compel or induce an employer to comply with demands made by the employees or any other employee;
  1. (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);
  1. (v)
    to cause loss or inconvenience to an employer in the conduct of business;
  1. (vi)
    to incite, instigate, aid, abet or procure another strike.

2 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.

3 However, strike does not include action by an employee if—

  1. (a)
    the action was based on a reasonable concern by the employee about an imminent risk to the employee’s health or safety; and
  1. (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.”
  1. [24]
    The QTU submits that a strike is defined as “the conduct of two or more employees” so it is the employees who “strike”, not the industrial organisation.  Therefore, it is submitted, it follows that the QTU doesn’t strike and, therefore, the QTU wasn’t involved in industrial action and, therefore, there is no basis to make orders against it.
  2. [25]
    It is clear from numerous decisions of the High Court of Australia that the appropriate approach to statutory construction is to ascertain the meaning of the text of the provision under consideration by reference to its statutory purpose, the context in which it appears in the statue and the context against which it has been enacted.[10]
  3. [26]
    Industrial Commissioner McLennan purported to make orders relying upon the jurisdiction vested by s 262(4)(a).  Section 262 provides:

“262 Action on industrial dispute

  1. (1)
    This section applies if—
  1. (a)
    notice of a dispute has been given by a party under section 261(2); or
  1. (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.
  1. (2)
    Subsection (1)(b) applies irrespective of whether the parties are attempting to resolve the dispute.
  1. (3)
    The commission may take the steps it considers appropriate for the prevention or prompt settlement of the dispute, by—
  1. (a)
    conciliation in the first instance; and
  1. (b)
    if the commission considers conciliation has failed and the parties are unlikely to resolve the dispute—arbitration.
  1. (4)
    Without limiting subsection (3), the commission may do 1 or more of the following—
  1. (a)
    direct any industrial action in relation to the dispute to stop or not happen;
  1. (b)
    make orders, or give directions, of an interlocutory nature;
  1. (c)
    exercise the commission’s powers under section 473 (whether or not application under that section has been made) to grant an interim injunction;
  1. (d)
    make another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute.
  1. (5)
    For proceedings for the dispute—
  1. (a)
    the commission may name a party to the dispute as having carriage of the proceedings; and
  1. (b)
    the party named has the carriage of the proceedings accordingly.
  1. (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.”
  1. [27]
    However, the Industrial Commissioner was clearly making interim orders in the form of injunctions and, as can be seen from s 262(c), the power to grant such orders is given by s 473.  That provides as follows:

“473 Power to grant injunctions

  1. (1)
    On application by a person under section 474, the commission may grant an injunction—
  1. (a)
    to compel compliance with an industrial instrument, a permit or this Act; or
  1. (b)
    to restrain or prevent a contravention, or continuance of a contravention, of an industrial instrument, a permit or this Act.
  1. (2)
    The injunction may apply to—
  1. (a)
    the officers or members of an organisation generally; or
  1. (b)
    particular officers or members of an organisation; or
  1. (c)
    a particular employer; or
  1. (d)
    a particular employee.
  1. (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.
  1. (4)
    Without limiting subsection (3), the commission may order that the notice, and substituted service of the injunction, be given by advertisement.
  1. (5)
    If a person to whom the injunction applies is given notice of the injunction, the person must comply with the injunction.
  1. (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.
  1. (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.
  1. (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.
  1. (9)
    The commission can not grant an injunction for a proposed contravention of section 316, 326, 329 or 330.
  1. (10)
    In this section—

injunction includes an interim injunction.

organisation includes a branch of the organisation.

  1. [28]
    Section 473(2) specifically authorises the making of orders against an “organisation”.  The term “organisation” is defined as:

“organisation means a body registered under chapter 12.”

  1. [29]
    Chapter 12 of the IR Act concerns industrial organisations and associated entities.  That chapter sets up a scheme for the registration and recognition of both employee organisations and employer organisations.[11]  An employee organisation is defined as:

“employee organisation means an organisation of employees.”

  1. [30]
    Section 940 of the IR Act provides as follows.

“940 References to engaging in conduct

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.”

  1. [31]
    There are difficulties concerning the interpretation of s 940.  Section 940 appears in Chapter 14 of the IR Act, which is headed General Offences.  Mr O'Brien, for the QTU, submits that s 940 only applies in relation to the prosecution of offences.  There may be some force in that, because Chapter 14, as already observed, is headed “General Offences”, and the sections, other than s 940, all do, one way or another, deal with offences.
  2. [32]
    However, s 940 appears not to easily fit within Chapter 14.  Section 937, for instance, provides as follows:

“937 Persons considered parties to offences

  1. (1)
    This section applies to an organisation or person who—
  1. (a)
    takes part in the commission of an offence under this Act; or
  1. (b)
    counsels or procures or aids the commission of an offence under this Act; or
  1. (c)
    encourages the commission of an offence under this Act; or
  1. (d)
    is concerned, directly or indirectly, in the commission of an offence under this Act;
  1. (2)
    The organisation or person is taken to have committed the offence and to be liable to the penalty prescribed for the offence.
  1. (3)
    This section does not limit the Criminal Code, section 7.”
  1. [33]
    Section 937 is a typical section which extends criminal liability to persons other than the actor.  Section 7 of the Criminal Code fulfils that function for offending against offence provisions generally in the State of Queensland and, indeed, s 7 is referred to in s 937(3).
  2. [34]
    Mr Murdoch QC submits that given s 937, if s 940 relates only to criminal offences, then s 940 has very little, if any, work to do.  Mr Murdoch also points to the fact that in s 940, the term which is used is “engaging in conduct”, rather than the commission of an offence.  The notion of engaging in conduct is reminiscent of the terminology which is used elsewhere in the IR Act, in particular in the definition of “strike”.
  3. [35]
    Here the members of the QTU voted to effectively boycott NAPLAN.  The members who so voted were, obviously, employees for the purpose of s 234.  The QTU, as the registered organisation of these employees, put the wishes of the employees into effect by the directive to all members and by the newsflash.  The Department argues that it is the conduct which was the strike and, therefore, the QTU was involved in that conduct.
  4. [36]
    It seems to me that although it is an odd concept that an industrial organisation cannot be party to a strike, there are provisions in the Act which point in both directions.  There is the definition of “strike”.  There are questions about s 940.  Section 234(3) seems to assume that an industrial organisation can be party to a strike, and s 473(2) specifically provides for injunctive relief against industrial organisations.  I am prepared to accept that Mr O'Brien has made out some grounds that it is at least arguable that an injunction may not be able to be lawfully given against an industrial organisation in these particular circumstances.
  5. [37]
    Ground 3 complains that there was no finding of fact that relevant employees were engaged in industrial action.  A fair reading of the Industrial Commissioner’s reasons does not support that submission.  In particular, see paragraphs 6, 8, 20 and following. 
  6. [38]
    Further, the fact that there was no actual finding that industrial action had occurred may not be relevant.  Section 473 empowers the QIRC to make injunctions to “restrain or prevent” a contravention of an industrial instrument.  Here the newsflash explained that 94 per cent of over 8,000 teachers voted in favour of the QTU’s NAPLAN boycott.  Action was imminent, which would give rise to the exercise of the jurisdiction conferred by section 473. 
  7. [39]
    By grounds 2 and 3, the QTU submits that discretionary errors have occurred in the exercise of the discretion by the Industrial Commissioner.  Firstly, it is submitted that the Industrial Commissioner misunderstood the significance of the QTU’s submission that the Department had acted contrary to the joint statement.
  8. [40]
    It is submitted that the Industrial Commissioner took that allegation into account in determining whether there was “unprotected industrial action”, rather than, as intended by the QTU, as a discretionary consideration that the Department did not come to court with clean hands.  The Industrial Commissioner, clearly enough, understood that the QTU made the submission as a discretionary factor.  In the reasons she said this:

“The QTU submits that the Department has not complied with that element of the Joint Statement and has engaged in dispute proceedings about that matter.”

And later:

“The Department has, therefore, not come to the dispute with clean hands, which is a necessary prerequisite to attaining equitable relief.  On that basis, there should be no orders made and instead the parties should continue negotiations about the matter.”[12]

  1. [41]
    The Industrial Commissioner has, though, seemingly dealt with the submission on a different basis.  She found, particularly

“[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.”

  1. [42]
    There are other criticisms of the way the discretion was exercised.  In particular, there is an allegation of a failure to give adequate reasons.  The reasons for exercising the discretion are really confined to one paragraph of the judgment, being paragraph 36 and perhaps paragraph 39.  They are:

“[36] The submission from the QTU that there will be quite some time from the beginning of the next school year until the scheduled date of NAPLAN, and therefore it would be premature to make any orders, does not sufficiently appreciate that the unprotected industrial action has already occurred and is ongoing. Nor does it appreciate that the ban also covers preparation for the test, both in an administrative and technical capacity, and such preparation has already been hampered. The QTU elected to take industrial action at this stage, in advance of the actual test date. It does not follow that it is then premature for the Department to seek relief about that action. …

[39] As for the QTU’s submissions regarding ‘high level discussions’ superseding the dispute resolution processes in the industrial instruments, that is incorrect. The Award and Certified Agreement processes are carried with the force of legislation. The processes established therein contain no suggestion that they may be cast aside on that basis. Those processes are agreed to by the parties at the time of certification, and they are required to comply with those.”

  1. [43]
    There is no detailed analysis of the submissions, although the submissions themselves were recorded in some detail.  At paragraph 40 of the reasons the Industrial Commissioner says this:

“[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.”

  1. [44]
    Despite that comment, 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. 
  2. [45]
    Ground 4 alleges a failure of the Industrial Commissioner to make an order under s 473(3).  Section 473 is set out earlier.  Section 473 requires the QIRC to decide how “notice of” and “service of” the injunction is given to, and made upon, the employees.  Order 3 deals with giving notice, but not “service on” the employees.
  3. [46]
    Whilst that may appear to be an error, it probably doesn’t have much effect, because of the provisions of s 473(5).  That provides that an injunction is enforceable upon all those persons who have notice of it (as opposed to being served a copy of it). 
  4. [47]
    In all the circumstances, it appears to me that there are arguable grounds which have been established by the QTU.  At this point, that finding is sufficient and it is not appropriate to make any further findings or comments about the force or otherwise, or prospect of success of the arguments.
  5. [48]
    The question then is where does the balance of convenience lie.  Preparation work will be required by teachers before there is any actual testing.  The first testing is practice testing in March/April 2021.[13]  From the material, it is clear that whilst the members of the QTU do not wish to be burdened with the extra preparation work for NAPLAN, the major objection seems to be with the testing and the practice testing.
  6. [49]
    In order to protect all parties’ rights, one has to look at the effect of a stay of the present injunctions or the effect of a dissolution of them.  If the injunctions are all lifted and QTU members stop work on NAPLAN, then by the time the appeal is heard and determined, there may be insufficient time for QTU members to participate in the NAPLAN, if QTU loses the appeal.  That will have ramifications for the Department and for the Commonwealth education funding.  On the other hand, if this dispute drifts on too long, the members of QTU will have to comply with their NAPLAN requirements before the dispute is finalised. 
  7. [50]
    The appropriate course is to set the appeal for hearing as soon as possible, which is 28 January 2021.  That may require some work to be done by members of the QTU from the time school returns which is 21 January 2021, until that point.  However, on balance, it seems to me that, provided the case can be finally determined before any testing, be it practice testing or otherwise, is completed, then that is a fair balance.
  8. [51]
    The order of Industrial Commissioner McLennan was that the injunction should remain until further order.  I think it is appropriate, though, given that circumstances may change in the near future, to dissolve the injunction at 4.00 pm on 28 January 2021.  If it comes to pass that I cannot determine the case on 28 January, then the Department can apply for some interim relief and the QTU can do likewise.
  9. [52]
    There is an issue about the QTU’s compliance with order 3, made by Industrial Commissioner McLennan, namely, the communication to its members of the content of the orders made by her.  I don’t intend to make any orders which affect the operation of that particular order.  The time for compliance with it has passed, and if there is any argument about compliance or non-compliance, that can be dealt with later.
  10. [53]
    I will, though, make an order that by 8 January 2021 the QTU communicate the contents of these orders and the orders of Industrial Commissioner McLennan to its members, and that by 11 January 2021 the QTU file an affidavit of compliance.  I will also make orders for the preparation of the appeal and setting the matter down.
  11. [54]
    Tomorrow there is listed before the Full Bench of the QIRC a show cause proceeding.  In those proceedings, it is alleged that there has been non-compliance with the orders of Industrial Commissioner McLennan.  The matter has moved on somewhat, and it would be inconvenient if the Full Bench of the QIRC conducted the show cause proceedings.  That is because the Commissioners would need to traverse much of the ground that I will need to traverse on the hearing of the appeal.  It is, therefore, appropriate for me to order a stay of the show cause proceedings until further order, and I will do so. 
  12. [55]
    After I made orders, it became possible to hear the appeal on 21 January 2021.  I listed the matter accordingly and adjusted the timetable for filing outlines.  The final orders made were:
  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.
  2. 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.
  3. 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.
  4. By 4.00 pm on 14 January 2021, the respondent is to file and serve any further written submissions on the appeal.
  5. By 4.00 pm on 19 January 2021, the appellant is to file and serve any written submission in reply.
  6. The appeal is listed for hearing at 10.00 am on 21 January 2021.
  7. 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.
  8. There be liberty to apply.
  9. Costs reserved.

Footnotes

[1][2020] QIRC 212.

[2]See s 77 of the Australian Education Act 2013 (Cth) and reg 43 of the Australian Education Regulations 2013 (Cth).

[3](1942) 65 CLR 373.

[4](1957) 99 CLR 575.

[5]The orders of McLennan IC.

[6]Industrial Relations Act 2016, s 424.

[7][2002] QCA 347.

[8][1985] 2 NSWLR 685.

[9][2016] ICQ 13.

[10]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 49, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, SZTAL v The Minister for Immigration and Border Protection (2017) 91 ALJR 936 at paragraphs 14 and 35 to 40, and, more recently, R v A2 and R v Magennis [2019] 273 ALR 214 at paragraph 32 and paragraph 124.

[11]Part 2.

[12]Paragraph 11 of the judgment.

[13]See attachment 3 to the Department’s submissions filed in the QIRC on 7 December 2020.

Close

Editorial Notes

  • Published Case Name:

    Queensland Teachers Union of Employees v State of Queensland (Department of Education)

  • Shortened Case Name:

    Queensland Teachers Union of Employees v State of Queensland (Department of Education)

  • MNC:

    [2020] ICQ 24

  • Court:

    ICQ

  • Judge(s):

    Davis J

  • Date:

    22 Dec 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27
2 citations
Jump To
Cite 1 - (2009) 239 CLR 27
Cite 2 - (2009) 239 CLR 27
Alexander & Ors v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
2 citations
Jump To
Cite 1 - (1985) 2 NSWLR 685
Cite 2 - (1985) 2 NSWLR 685
Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503
2 citations
Jump To
Cite 1 - (2012) 250 CLR 503
Cite 2 - (2012) 250 CLR 503
Elphick v MMI General Insurance Ltd [2002] QCA 347
2 citations
Jump To
Cite 1 - [2002] QCA 347
Cite 2 - [2002] QCA 347
Queensland v Parer [2016] ICQ 13
2 citations
Jump To
Cite 1 - [2016] ICQ 13
Cite 2 - [2016] ICQ 13
R v Magennis [2019] 273 ALR 214
1 citation
Jump To
Cite 1 - [2019] 273 ALR 214
South Australia v The Commonwealth (1942) 65 CLR 373
2 citations
Jump To
Cite 1 - (1942) 65 CLR 373
Cite 2 - (1942) 65 CLR 373
State of Queensland (Department of Education) v Queensland Teachers Union of Employees [2020] QIRC 212
2 citations
Jump To
Cite 1 - [2020] QIRC 212
Cite 2 - [2020] QIRC 212
SZTAL v Minister for Immigration and Water Protection (2017) 91 ALJR 936
2 citations
Jump To
Cite 1 - (2017) 91 ALJR 936
Cite 2 - (2017) 91 ALJR 936
Victoria v The Commonwealth (1957) 99 CLR 575
2 citations
Jump To
Cite 1 - (1957) 99 CLR 575
Cite 2 - (1957) 99 CLR 575

Cases Citing

Case NameFull CitationFrequency
Queensland Teachers Union of Employees v State of Queensland (Department of Education) (No 2) [2021] ICQ 32 citations
1

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