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CITE

Unreported Judgment

State of Queensland (Department of Education) v Queensland Teacher's Union of Employees[2024] QIRC 104Hartigan DP
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State of Queensland (Department of Education) v Queensland Teacher's Union of Employees[2024] QIRC 104

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	State of Queensland (Department of Education) v Queensland Teacher's Union of Employees [2024] QIRC 104
PARTIES:	*State of Queensland (Department of Education)* (Notifier) v *Queensland Teacher's Union of Employees* (Respondent)
CASE NO:	D/2024/41
PROCEEDING:	Notice of industrial dispute
DELIVERED ON:	3 May 2024
MEMBER:	Hartigan DP
HEARD AT:	Brisbane
HEARD ON:	30 April 2024
ORDER:	The orders are in the terms set out at paragraph [52] of the Reasons for Decision.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – INDUSTRIAL DISPUTES – INDUSTRIAL ORGANISATIONS – where the respondent union issued a directive to its members to cease certain work – whether industrial action is protected – whether orders granting injunctive relief appropriate – where injunctive relief granted.
LEGISLATION:	Industrial Relations Act 2016 (Qld), ss 233, 234, 235, 236, 261, 262, 265, 266 and sch 5. Department of Education State School Teachers' Certified Agreement 2022
CASES:	Teaching in State Education Award – State 2016 Queensland Teacher's Union of Employees v State of Queensland (Department of Education) (No 2) [2021] ICQ 003

Reasons for Decision

Introduction

[1]
On 20 April 2024, the State of Queensland (Department of Education) ('the Department') filed a Notice of Industrial Dispute with respect to action organised by the Queensland Teacher’s Union of Employees ('the QTU'), and that its members proposed to take, in the form of various work bans due to commence on 1 May 2024.

[2]
The Department seeks final and interlocutory relief on the basis that the proposed work bans are not protected industrial action and are "unlawful". Following a conference on 30 April 2024, the dispute between the parties was placed into arbitration for the purpose of determining the Department’s application for interlocutory relief.

[3]
Following the hearing of the matter, I issued orders in the terms of paragraph [52] on 30 April 2024.

[4]
These are the reasons for those orders.

[5]
With respect to the application for final relief sought by the Department, the parties are to confer with one another and then jointly contact the Industrial Registry with draft directions in order for the matter to be scheduled for hearing.

The proposed action

[6]
It was not controversial between the parties that following a ballot that closed on Friday 26 April 2024, QTU members voted to implement work bans. The QTU published a “Members Newsflash” on 29 April 2024 ('the 29 April Newsflash')^[1], wherein it states that “[m]ore than 28,000 members voted individually and from 966 workplaces”. The 29 April Newsflash relevantly continues by stating that:

Consequently, all QTU members in schools are hereby directed to:

1.
Implement the following work bans from 4.00pm 1 May 2024 until 4.00pm Thursday 9 May 2024 (the week of action):

NB: The work bans during the week of action, i.e. the ones below, require members to cease undertaking activities not directly linked to teaching and learning.

a)
No engagement in, or adoption of department initiatives such as whole school reviews; Department of Education roadshows.

b)
No participation in work outside of rostered duty time.

c)
No classroom/lesson observations (collegial engagement), no participation in the Setting Professional Goals/Annual Performance Review processes.

d)
Minimising data collection and involvement in discussions around data.

e)
No teaching of oversized classes - i.e. the provision of supervision only.

f)
No principal involvement in local level investigations - send to regional office for action.

g)
No submission of strategic documentation e.g. SOS, student code of conduct.

h)
No attendance at regional or central office meetings or replies to emails sent by regional or central office.

2.
Implement the following work bans from 4.00pm 1 May 2024 until 4.00pm Friday 21 June 2024

NB: the following work bans focus on member wellbeing and workload and call on members to cease:

a)
participation in the further implementation of Version 9 of the Australian Curriculum and revised senior syllabuses (applied and general) until such time as the department provides additional resourcing to support this implementation

b)
participation in school behaviour reviews/reviews of the school's student code of conduct

c)
engagement with the roll-out of further initiatives arising from the department's Equity and Excellence Strategy

d)
participation in meetings or discussions that use the number of SDAs as a performance measurement.

Question 3: Addressing the 41-week school year

As the Minister and the department have communicated with schools outlining that final week of the school year should be a program of alternative activities, the QTU will not issue this directive at this time

However, if the approach to supervision only of these activities is inconsistent across the state the QTU will seek to implement the directive as necessary.

[7]
During the course of the hearing a further QTU publication was tendered^[2] in the form of a “School Leader Update No.4-24, 30 April 2024” ('the QTU Update'). Relevantly, the QTU Update appears to have been sent to members of the QTU by email at 12:40pm on Thursday 30 April 2024. This was at a time after the QTU had been served with the Notice of Industrial Dispute, after the notice of listing of the dispute had been sent to the parties and, relevantly, was sent while the parties were appearing before the QIRC in the dispute. The QTU Update stated as follows:

Following the close of the ballot on Friday afternoon, QTUI members voted overwhelmingly to implement the work bans.

The week of action runs from Wednesday 1 May until Thursday 9 May

Directive were issued to all QTU members Monday 29 April and, including school leaders, an can be found here: https://www.qtu.asn.au/nflash-290423

It is very important that QTU school leader members are not pressured by their supervisors to ignore the work bans. Any attempt by the Department of Education (the department) to intimidate school leader members will be met with resistance.

With the overwhelming support of these directives, by a record breaking 28,000 members, members are sending a clear message to the department that schools are at breaking point

To date, several matters remain unresolved with the department; these include the development of a systematic approach to the teacher shortage, workload inconsistencies associated with the implementation of the new Australian Curriculum, and the use of school disciplinary absence (SDA) data as a performance measure.

The week of action is designed to draw attention to these ongoing issues within schools. The QTU is aware that it is not possible for members to maintain the "business as usual" approach, when they are not able to access their entitlements due to staff shortages, as well as requiring further support for inclusion, behaviour management and workload.

Further information regarding the work bans and support for their implementation can be found on the QTU website https://www.qtu.asn.au/valuing-our-profession-campaign. QTU representatives are encouraged to work with their school leaders and fellow QTU members on the most effective way to participate in the work bans and advise school communities of this.

School leaders' commitment to complying with the identified work bans will be highly values by all members. School leaders who are QTU members have an industrial right to comply with a directive issued by the QTU. That includes participation in school reviews schedules for the week of action, and attendance at Department Roadshows.

School leaders, head of program or teachers who are not yet members of the QTU can join the QTU online here https://www.qtu.asn.au/join and be covered by the QTU directives if they join before 1 May.

Non members cannot follow QTU directives as the work bans only apply to QTU financial members.

[8]
The Department called Ms Rachel Borger, Assistant Director-General and Chief HR Officer, Department of Education, as a witness, who, in summary, gave the following evidence:

The implications of the directive to not engage in or adopt Department initiatives such as whole school reviews, would be significant for the Department, as school reviews provide an opportunity to set the strategic direction for the next four years for a school, and if staff did not participate, the Department runs the risk of initiatives and strategies not being validated, articulated, and meeting the needs of students;
If school reviews are not run at the scheduled time, it would need to be rescheduled to the back-end of the year which has a whole of cycle impact on the Department and its planning;
Regional roadshows are an opportunity for all school leaders and Principals to come together to discuss critical matters, hear from the Department about key initiatives and for the Department to hear feedback from Principals. Principals not participating in Regional Roadshows would be of significant detriment to communicating initiatives, key objectives, the Department receiving feedback from Principals as well as logistical implications;
A ban on the teaching of oversized classes would be a detriment to students who would miss out on learning;
The directive for teachers not to reply to emails sent by regional central office presents a major risk to health and safety of students, given the ability to engage quickly through regional office communication is important to ensure things like complex family situations are communicated to all relevant parties;
School disciplinary absences ('SDAs') are not used as a measure of a Principal's performance and this was communicated by the Department to the QTU in response to the issues raised by the QTU on 8 April 2024.

[9]
Further, the propositions put to Ms Borger under cross-examination by the QTU were to the effect that if some of the work bans were to proceed, that they would be of limited impact. Specifically, it was asked of Ms Borger how many reviews were due to be conducted during the period of 1 May to 9 May 2024. Ms Borger’s evidence was that she did not know. The QTU also asked Ms Borger when the regional roadshows were to commence. Ms Borger’s evidence was regional roadshows are to commence in the next couple of weeks and run until the back end of June.

[10]
Despite this line of cross-examination, the QTU accepted that the purpose of the work bans was to limit and/or restrict the work to be performed by the teachers in the performance of their duties.

[11]
The QTU's representative further submitted that the purpose of the work bans was to address a number of industrial issues that were currently affecting its members. Those issues were described in submissions as follows:

the current teacher shortage and the additional workload associated with departmental reviews and initiatives when there is a teacher shortage;
workload inconsistencies associated with new Australian curriculum; and
the use of SDAs as a punitive performance measure.

[12]
The QTU did not call any evidence.

[13]
Relevantly, the QTU did not submit that the work bans were protected industrial action.

Relevant Statutory Provisions

[14]
Whether the industrial action is protected industrial action or “not protected” is dealt with in Ch 4 Pt. 8 of the Industrial Relations Act 2016 (Qld) ('IR Act').

[15]
Section 233 provides the definition of “protected industrial action” as follows:

233
When industrial action is protected industrial action

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

(a)
meets the requirements of this section; and

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

(2)
The industrial action must be—

(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.
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.

Note—

However, see sections 240 and 241.

(7)
In this section—

"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

[16]
Section 234 provides the definition for industrial action which is “not protected” as follows:

234
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;

(d)
an employer who will be covered by the proposed instrument.

[17]
For the purpose of s 233 and s 234 "industrial action" is defined^[3] to mean a lockout or strike. Relevant to this matter "strike" is defined as:

"strike" —

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

(a)
the conduct is any of the following—

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

(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.

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—

(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 the employee’s employer to perform other available work at the employee’s workplace, or another workplace, that was safe and appropriate for the employee to perform.

[18]
Section 235 provides the approval process for industrial action as follows:

235
Approval to engage in industrial action

(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 the employees are members of the employee organisation; and

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

(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.

[19]
Section 236 provides for the manner in which notice of industrial action must be given as follows:

236
Notice of industrial action must be given

(1)
For section 233 (5) , the protected person 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.

(3)
Notice under this section must indicate—

(a)
the nature of the intended action; and

(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.

[20]
Industrial disputes are dealt with in Ch. 6 of the IR Act.

[21]
Section 261 provides that notice of an industrial dispute must be given to the Registrar as follows:

261
Notice must be given to registrar

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

(a)
exists between—

(i)
an employer organisation or employer; and

(ii)
an employee organisation or employee; and

(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.

(3)
The notice—

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

(b)
must state each of the following—

(i)
the names of the parties to the dispute;

(ii)
the place where the dispute exists;

(iii)
the subject matter of the dispute;

(iv)
anything else required by the rules.

[22]
Section 262 provides for the action that may be taken on an industrial dispute as follows:

262
Action on industrial dispute

(1)
This section applies if—

(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—

(a)
conciliation in the first instance; and

(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.

(5)
For proceedings for 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.

[23]
As highlighted above, s 262(4)(a) empowers the QIRC to, inter alia, "direct any industrial action in relation to the dispute to stop or not happen."

[24]
In Queensland Teacher's Union of Employees v State of Queensland (Department of Education) (No 2)^[4] ('QTU v State of Qld') the Court construed s 262(4)(a)^[5] as follows:

[32]
On a proper construction of s 264, the relief identified by s 26[2]([4])(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 26[2]([4])(a).

[25]
Section 265 provides for the enforcement of the Commission’s orders. It relevantly states:

265
Enforcing commission’s orders

The commission may direct an order about a dispute to—
1. (a)
  an organisation; or
1. (b)
  a person in a capacity as an officer or agent of an organisation; or
1. (c)
  any other person.
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.
An order must—
1. (a)
  if the order is made against a person—state the person’s name; and
1. (b)
  state a time for complying with the order; and
1. (c)
  direct any of the following to file an affidavit with the registrar within a stated time—

the organisation or person to whom the order is directed;
the party to the proceedings who sought the order;
any other party to the proceedings the commission considers appropriate.
1. (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.
1. (5)
  The commission may extend a time stated under subsection (3) (b) or (c) .
1. (6)
  At the end of the time stated or extended for filing an affidavit, the registrar must—
1. (a)
  examine all affidavits filed; and
1. (b)
  if not all affidavits required to be filed have been filed by that time—make all necessary further inquiries; and
1. (c)
  having examined the affidavits filed and made the inquiries necessary, decide whether there has been substantial compliance with the order.
1. (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 .
1. (8)
  In this section—

"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).

[26]
An order about a dispute must include an order made under s 262(4)(a) of the IR Act.^[6]

[27]
Section 266 provides for remedies if a show cause notice is not met in the following terms:

266 Remedies on show cause notice

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—
1. (a)
  impose on the organisation a penalty of not more than 1,000 penalty units;
1. (b)
  amend a bargaining instrument to which the organisation is a party;
1. (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;
1. (d)
  change the organisation’s rules to exclude from eligibility for membership persons belonging to a particular class or section of the membership;
1. (e)
  make the orders it considers appropriate—
1. (i)
  to restrict the use of the organisation’s property; and
1. (ii)
  to control the organisation’s property to ensure the restrictions are complied with;
1. (f)
  suspend the organisation’s registration for a stated period;
1. (g)
  deregister the organisation;
1. (h)
  make the other orders it considers appropriate—
1. (i)
  to secure the organisation’s compliance with the commission’s order; or
1. (i)
  to punish the organisation for not complying with the commission’s order;
1. (j)
  order the organisation to pay the costs of the show cause proceedings.
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—
1. (a)
  impose on the person a penalty of not more than 40 penalty units;
1. (b)
  make the other orders it considers appropriate—
to secure the person’s compliance with the commission’s order; or
to punish the person for not complying with the commission’s order;
1. (a)
  order the person to pay the costs of the show cause proceedings.
All persons concerned must comply with an order or direction made or given by the full bench.
In this section—

"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.

Interlocutory Relief: General Principles

[28]
The interlocutory orders sought by the Department seek to prohibit certain conduct. It has been held by the Industrial Court^[7]that the general principles applicable to the making of an interlocutory injunction apply to the making of an interlocutory order concerning a statutory remedy which prohibits conduct.

[29]
The principles that govern the Commission's discretion to grant interlocutory injunctive relief are well settled. In order to qualify for the relief sought, the applicant must demonstrate that they have a prima facie case and that the balance of convenience favours the grant of an injunction.[8]

[30]
When considering the grant of an interlocutory injunction, it has been held that the issue of whether an applicant has established a prima facie case and whether the balance of convenience favours injunctive relief are related inquiries. Whether there is a prima facie case is to be considered together with the balance of convenience.[9]

[31]
In Bullock v The Federated Furnishing Trades Society of Australasia^[10] stated (at 472):

...an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.

[32]
In QTU v State of Qld^[11] the Court identified that the grant of both interlocutory or final relief will depend upon the nature of the right being defended.

[33]
Relevantly, the Court stated:^[12]

… 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.

[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.

[34]
The submissions of both parties were somewhat limited with respect to the application of the applicable legal principles. Given that the hearing was listed on an urgent basis that is not a criticism of the parties, However, the Commission has an expectation that parties who come seeking interlocutory injunctive relief and those who come responding to such an application will have turned their respective minds to the relevant principles.

[35]
Noting the above, I am satisfied that material was placed before the Commission relevant to the consideration of the legal principles to be applied.

Prima Facie Case

[36]
The information contained in the 29 April 2024 Newsflash and the QTU update is relevant to my consideration of whether there is a prima facie case.

[37]
Relevantly, that information states, inter alia, that the QTU directed its members in schools to implement two types of work bans:

that the first type of work ban would be implemented from 4pm on 1 May 2024 until 4pm on 9 May 2024, (described as the "week of action") and that all members were to cease undertaking activities not directly linked to teaching and learning. These activities included:

No engagement in, or adoption of department initiatives such as whole school reviews; Department of Education roadshows.
No participation in work outside of rostered duty time.
No classroom/lesson observations (collegial engagement), no participation in the Setting Professional Goals/Annual Performance Review processes.
Minimising data collection and involvement in discussions around data.
No teaching of oversized classes – i.e. the provision of supervision only.
No principal involvement in local level investigations – send to regional office for action.
No submission of strategic documentation e.g. SOS, student code of conduct.
No attendance at regional or central office meetings or replies to emails sent by regional central office.

that the second type of work ban was to be implemented from 4pm 1 May 2024 until 4pm 21 June 2024 and required members to cease the following activities:

Participation in the further implementation of Version 9 of the Australian Curriculum and revised senior syllabuses (applied and general) until such time as the department provides additional resourcing to support this implementation

Participation in school behaviour reviews/reviews of the school's student code of conduct

Engagement with the roll-out of further initiatives arising from the department's Equity and Excellence Strategy

Participation in meetings or discussions that use the number of SDAs as a performance measurement.

[38]
The QTU update confirmed that the directive referred to above was issued to "all QTU members" … "including school leaders" on 29 April 2024.

[39]
Relevantly, the QTU Update stressed the importance that "QTU school leader members are not pressured by their supervisor to ignore the work bans."

[40]
The QTU did not argue that it was not responsible for issuing the directive, further, nor did it argue that its' members did not propose to engage in the work bans.

[41]
In the context of the uncontested information contained in the 29 April Newsflash and QTU Update, I am satisfied, on a prima facie basis, that:

the QTU directed its members to implement work bans following a ballot of the membership;
the proposed work bans are industrial action insofar as they amount to a "strike" within the meaning of Sch. 5 of the IR Act; and
the industrial action is not protected industrial action within the meaning of s 233 of the IR Act.

[42]
Consequently, I consider that the Applicant has established a prima facie case for the interlocutory relief sought.

Balance of convenience

[43]
The QTU's brief written submissions were to the effect that the work bans essentially related to work outside of rostered duty time. It contended that the work bans did not impact on the educational requirements of the students, nor did it impact on the wider community.

[44]
Tellingly, the QTU submitted that the "only potential impact relates to matters which are solely within the realms of the employment relationship between the Department and teachers." This is hardly surprising, given industrial action, particularly in the form of a strike, is usually directed at the disruption of the employment relationship.

[45]
In any event, the QTU's submissions appear contradictory to the terms of the proposed work bans which include, for instance, a direction to cease teaching oversized classes and to instead, only supervise those classes.

[46]
Given that the QTU contends that the work bans arise out of its members' concerns regarding an alleged teacher shortage, I consider the proposed work bans have the potential to impact not only the employment relationship, but potentially impact on third parties including students.

[47]
Save for the inherent prejudices to the QTU being made a subject to a grant of interlocutory relief, which is akin to injunctive relief, there is no material detriment the QTU, or its members will sustain if the orders are issued.

[48]
By contrast, the prejudice to the Department is obvious and immediate. If the orders were not issued and the proposed work bans commenced it would have the consequence that up to 28,000 QTU members would alter and restrict the work they performed, some of which was intended to continue until 21 June 2024.

[49]
For these reasons, I consider that the balance of convenience favours a grant of the interlocutory relief sought.

Form of Relief

[50]
It follows, that the Commission is inclined to exercise its discretion to issue the orders.

[51]
At the hearing the Department abandoned its request that injunctive orders be issued pursuant to s 473 of the IR Act and instead sought directions be issued pursuant to s 262(4)(a) of the IR Act. As is apparent from the terms of the order, they have been issued on an interlocutory basis.

Orders

[52]
The Commission issues the following orders:

These orders are to come into force immediately and to remain in force until final determination of the application before the Commission or other earlier order.
Pursuant to s 262(4) of the Industrial Relations Act 2016 (Qld) I direct that all unprotected industrial action proposed, directed or engaged in by the Queensland Teachers Union of Employees (QTU) namely, the work bans as described in the QTU's "Members Newsflash" dated 29 April 2024 and 30 April 2024 is not to occur and/or is to immediately cease and is to not recommence.

Description of work bans for the purpose of Order 2

1. Implement the following work bans from 4.00pm 1 May 2024 until 4.00pm Thursday 9 May 2024 (the week of action):

NB: The work bans during the week of action, i.e. the ones below, require members to cease undertaking activities not directly linked to teaching and learning.

a) No engagement in, or adoption of department initiatives such as whole school reviews; Department of Education roadshows.

b) No participation in work outside of rostered duty time.

c) No classroom/lesson observations (collegial engagement), no participation in the Setting Professional Goals/Annual Performance Review processes.

d) Minimising data collection and involvement in discussions around data.

e) No teaching of oversized classes – i.e. the provision of supervision only.

f) No principal involvement in local level investigations – send to regional office for action.

g) No submission of strategic documentation e.g. SOS, student code of conduct.

h) No attendance at regional or central office meetings, or replies to emails sent by regional or central office.

2. Implement the following work bans from 4.00pm 1 May 2024 until 4.00pm Friday 21 June 2024

NB: the following work bans focus on member wellbeing and workload and call on members to cease:

a) participation in the further implementation of Version 9 of the Australian Curriculum and revised senior syllabuses (applied and general) until such time as the department provides additional resourcing to support this implementation

b) participation in school behaviour reviews/reviews of the school’s student code of conduct

c) engagement with the roll-out of further initiatives arising from the department’s Equity and Excellence Strategy

d) participation in meetings or discussions that use the number of SDAs as a performance measurement.

The QTU is to communicate that information, namely the contents of orders 1 and 2 above, to its members by 8.00am on 1 May 2024 by emailing a copy of these orders to each of their members.
The QTU shall file an affidavit with the Industrial Registrar, serving a copy on the Department of Education, by 10.00 am on 1 May 2024, as to whether there has been compliance with these orders.
Each party shall have liberty to apply to the Commission as to the progress of the application.

Footnotes

[1] Notice of Industrial Dispute dated 30 April 2024, Attachment 4.

[2] Exhibit 1.

[3] Industrial Relations Act 2016 (Qld) sch 5 ('IR Act').

[4] [2021] ICQ 003 at [32] ('QTU v State of Queensland (No 2)').

[5] Erroneously referred to in the decision as 264(2)(a).

[6] IR Act (n 3) s 265(1)

[7] QTU v State of Queensland (No 2) (n 4) at [81].

[8] Australian Broadcasting Corporation v O'Neill (2006) 227 CCR 57 at [81]-[84].

[9] Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238, 261 [67]

[10] (1985) 5 FCR 464.

[11] QTU v State of Qld (n 4) at [84]-[86].

[12] Ibid.

Editorial Notes

Published Case Name:
State of Queensland (Department of Education) v Queensland Teacher's Union of Employees
Shortened Case Name:
State of Queensland (Department of Education) v Queensland Teacher's Union of Employees
MNC:
[2024] QIRC 104
Court:
QIRC
Judge(s):
Hartigan DP
Date:
03 May 2024

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Bullock v FFTSA	(1985) 5 FCR 464	1 citation Jump To Cite 1 - (1985) 5 FCR 464
Queensland Teachers Union of Employees v State of Queensland (Department of Education) (No 2)	[2021] ICQ 3	2 citations Jump To Cite 1 - [2021] ICQ 3 Cite 2 - [2021] ICQ 3
Samsung Electronics Co Ltd v Apple Inc	(2011) 217 FCR 238	1 citation Jump To Cite 1 - (2011) 217 FCR 238

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State of Queensland (Department of Education) v Queensland Teacher's Union of Employees[2024] QIRC 104