Department of Education and Training Teachers' Certified Agreement [2012] QIRC 59

CITATION: Department of Education and Training Teachers' Certified Agreement 2010 (CA/2012/47) - Decision <http://www.qirc.qld.gov.au> QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 176 - requirements for other industrial action by an employee organisation or employees Queensland Teachers Union of Employees AND State of Queensland (Department of Education, Training and Employment) (CA/2012/47) DEPARTMENT OF EDUCATION AND TRAINING TEACHERS' CERTIFIED AGREEMENT 2010 DEPUTY PRESIDENT BLOOMFIELD 11 July 2012 DECISION (as edited) Background [1] On 9 July 2012 Queensland Teachers Union of Employees (QTU) filed an application in the Queensland Industrial Relations Commission (the Commission) in which it asked the Commission to issue an Order for a protected action ballot pursuant to s. 176 and Schedule 4 of the Industrial Relations Act 1999 (the Act). The group of employees proposed to be balloted are all financial members of QTU employed under the Department of Education and Training Teachers' Certified Agreement 2010. [2] On the basis that s. 6(2) of Schedule 4 of the Act requires the Commission to, as far as practicable, decide the application within two working days of it being filed, the Commission as presently constituted listed the matter for hearing on Wednesday 11 July 2012 at 10.00 a.m. At that time, Ms T. Edmonds appeared for QTU, Mr D. Waters appeared for the Department of Education, Training and Employment (DETE) and Ms K. McGill appeared for the Acting Chief Executive of the Public Service Commission (PSC). In response to a question asked of him at the outset of proceedings, Mr Waters indicated that DETE would be opposing QTU's application on a number of grounds, including: • the fact that QTU had authorised industrial action by its members in relation to the proposed roll out of the State Government's Independent Public Schools program and DETE's Teaching and Learning audit program; • lack of specificity in the proposed question to be put to members in the ballot process; and • the period of notice which the QTU would be required to provide to DETE (under s. 176(6)(b)), before taking industrial action, if the proposed ballot was approved. [3] After hearing from Mr Waters and Ms Edmonds I ruled that QTU's present application was separate and distinct from QTU's alleged involvement in authorising unprotected industrial action. I also ruled that the present application should proceed to be heard and determined expeditiously, with DETE's concerns about QTU's alleged involvement in unauthorised industrial action to be the subject of separate proceedings as a result of its notification of dispute to the Commission (D/2012/132) early on the morning of 11 July 2012 . As such, I proceeded to hear the submissions of Ms Edmonds in support of QTU's application for a protected industrial action ballot and DETE's opposition to certain elements of the application. [4] Relevantly, the question which QTU proposed be put to employees was: "In support of reaching an enterprise agreement, do you endorse taking protected industrial action in the form of an unlimited number of State wide or Regional or Workplace stoppages of work of 1 to 24 hours in duration or bans or limitations on the manner in which work is undertaken?". [5] After an exchange between the Commission as presently constituted and Ms Edmonds about the nature of the question posed and whether it satisfied the requirements of Schedule 4 - ss. 2 and 3(b) of the Act, Ms Edmonds informed the Commission that the proposed question was in identical form to a question approved by Deputy President Smith of Fair Work Australia (FWA) in Australian Education Union v The State of Victoria (Department of Education and Early Childhood Development)1. In doing so, she highlighted the Deputy President's reasoning, noting that the approach he adopted was in accord with the reasoning of a Full Bench of FWA in John Holland v AMWU2 at paragraph [19] of that decision. [6] In response, Mr Waters referred me to: 1 Australian Education Union v The State of Victoria (Department of Education and Early Childhood Development) [2012] FWA 3729. 2 John Holland v AMWU [2010] FWA 526 per Giudice J, Watson SDP and Blaire C. -- 1 of 5 -- 2 • Davids Distribution Pty Ltd v National Union of Workers 3, a decision of the Full Court of the Federal Court issued on 13 August 1999; • United Firefighters' Union of Australia v Country Fire Authority4, a decision of a Full Bench of the Australian Industrial Relations Commission (AIRC) issued on 8 September 2006; and • Telstra Corporation Limited v CEPU5, a decision of Vice President Lawler issued on 5 December 2009. [7] Mr Waters said that the decisions he referred to each highlighted the need for any questions to be put to employees during a protected action ballot to be clear and unambiguous and framed in a way which enabled both employees who might be balloted and their employer to understand the nature of the industrial action which was proposed. [8] After considering the authority tendered by Ms Edmonds, I informed QTU that I regarded the learned Deputy President's decision as simply one of a number of decisions made in FWA in relation to protected action ballot order applications and that, with respect to Deputy President Smith, the majority of decisions reflected a view that the question(s) to be posed during a ballot must be framed in such a way that the nature of the proposed industrial action is clear and unambiguous and not left for subjective interpretation. [9] After being informed of this, Ms Edmonds applied to amend QTU's application to recast the question to be put to employees to be balloted, as follows: "b) The questions to be put to the employees who are to be balloted are: In support of reaching an enterprise agreement with the Department of Education, Training and Employment do you wish to organise and/or engage in separately, concurrently and/or consecutively, the following protected industrial action against the Department of Education, Training and Employment? Question 1: An unlimited number of State wide, Regional or Workplace bans or limitations on the manner in which work is undertaken? Question 2: An unlimited number of State wide, Regional or Workplace stoppages of work up to 24 hours duration?". [10] On behalf of DETE Mr Waters opposed QTU's application to amend its initial application on the basis the change constituted a substantial amendment and "clearly altered the nature of the question proposed to be put to members of QTU". After hearing Mr Waters' arguments, I determined to allow QTU to amend its application to incorporate the new question (as above). In so ruling, I informed Mr Waters that the nature of the amendment was not so substantially different to the original question proposed that it would disadvantage DETE in any way, in that virtually the same issues were being canvassed with QTU members, albeit in a different format. In addition, the provisions of Schedule 4 of the Act (specifically s. 6(2)) required the Commission to deal with applications for protected action ballot orders, so far as practicable, within two working days after the application is made. [11] After noting the Commission's ruling, Mr Waters raised similar objections to those outlined in paragraph [2] in relation to the clarity of the questions proposed to be canvassed with members of QTU during any ballot. In doing so, Mr Waters stated that DETE had a responsibility, through 44,300 teachers employed in 1,239 schools, to ensure the safety and wellbeing of 507,526 students in the Queensland Public Schools sector. This responsibility meant that DETE needed to be certain of the nature of any industrial action which teachers might take if it was to plan adequate contingency arrangements and be in a position to inform interested parties, such as parents and guardians, of those arrangements. In this respect, Mr Waters also asked the Commission to determine, in accordance with the provisions of s. 176(6)(b) and Schedule 4 - ss. 8(4) and (5) of the Act, that QTU be required, if its ballot was successful, to give DETE seven working days notice of the nature of the industrial action it (ultimately) authorised its members to engage in. [12] In response to these latter submissions, Ms Edmonds informed me that QTU had always been, and continued to be, committed to ensuring the safety of children attending Queensland Public Schools. In this respect, she said it was QTU's clear intention to provide three clear working days notice to DETE of the introduction of any bans or limitations on the manner in which work might be performed and five working days notice of any State, Regional or Workplace stoppage of work. She noted that the latter period was identical to the notice period decided by Commissioner Asbury in Department of Education and Training v Queensland Teachers' Union of 3 Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108. 4 United Firefighters' Union of Australia v Country Fire Authority [2006] AIRC 563. 5 Telstra Corporation Limited v CEPU [2009] FWA 159. -- 2 of 5 -- 3 Employees6, when QTU previously engaged in industrial action in support of enterprise bargaining claims. This was the same period of notice Deputy President Smith determined in the Australian Education Union7 matter referred to in paragraph [5]. [13] Ms Edmonds also indicated that members of QTU were sufficiently industrially aware to understand the nature of the questions proposed to be canvassed with them in the amended application and could be relied upon to vote accordingly. Further, DETE's concerns about adequate notice and the identification of any bans or limitations on the manner in which work might be performed would be addressed (and satisfied) in any notification of industrial action which QTU might ultimately provide. It was neither necessary nor appropriate for the specific aspects of industrial action which might ultimately be engaged in to be canvassed at this time. This was because the QTU Council would decide the nature and timing of industrial action to be taken after poling its members. [14] After hearing from each of the parties, and noting Ms McGill's support, on behalf of PSC, for the position advocated by Mr Waters on behalf of DETE, I indicated to the parties that I would reserve my decision and issue it during the course of the day after I had the further opportunity to consider the matters raised. Requirements of the Act [15] The provisions of s. 176 and Schedule 4 of the Act require that the Commission satisfy itself that a number of specific requirements have been met before a protected action ballot order can be issued. In that respect I am satisfied that: • the employee organisation making the application is a negotiating party to the proposed agreement (see Schedule 4 - s. 3(1)(a)); • the application states the group of employees who are to be balloted (see Schedule 4 - s. 3(3)(a)); • the application identifies the group of employees to be balloted as only those employees who will be bound by the proposed agreement and who are (also) members of the applicant (see Schedule 4 - ss. 3(4)(a) and (b)); • the application has been made no earlier than 30 days before the nominal expiry date (i.e. 30 June 2012) of the existing agreement (see Schedule 4 - s. 4(2)); • the application for a protected action ballot order has been given to the employer of the employees who are to be balloted and the Electoral Commission Queensland (ECQ) within 24 hours after it was made (see Schedule 4 - s. 5); • QTU has been, and is, genuinely trying to reach agreement with the employer of the employees who are to be balloted (see Schedule 4 - s. 8(1)(b); and • negotiations for the agreement have begun (see Schedule 4 - s. 8(1)(c)). [16] However, in terms of the provisions of Schedule 4 - s. 3(b), I am not satisfied that the question which is proposed to be put to the employees who are to be balloted is framed clearly enough to enable those employees to sufficiently identify, and then vote on, the nature of the proposed industrial action. [17] In this respect I note that while QTU have specifically relied upon the reasoning of Deputy President Smith as authority for establishing that its (amended) questions are framed with sufficient clarity I am also conscious of the fact that the decision he relies upon to arrive at his conclusion (i.e. John Holland8) contains a number of other comments and conclusions sufficient, in my mind, to cause me to not follow his reasoning. In my view, the ratio of the decision cannot be ascertained by reading paragraph [19] in isolation. That paragraph must be read in the context of the whole of the Full Bench's consideration of the first ground of appeal, which is set out in paragraphs [11] to [23], inclusive. [18] I also note that the decision of Deputy President Smith is at odds with the majority of decisions of other Members of FWA concerning protected action ballot order applications. In those decisions, both preceding and following the decision in John Holland ibid, the traditional test has been that established by a differently constituted Bench of AIRC in the United Firefighters'9 matter referred to by Mr Waters. In that decision the Full Bench said: "[20] …the intention of the legislature can only be gleaned from the provision of the legislation in this case, it appears logical that when employees are asked whether to authorise industrial action in the protected action ballot, the nature of the proposed industrial action is expressed clearly enough to enable them to make an informed choice. … 6 Department of Education and Training v Queensland Teachers' Union of Employees (2009) 191 QGIG 383. 7 Australian Education Union v The State of Victoria (Department of Education and Early Childhood Development) [2012] FWA 3729. 8 John Holland v AMWU [2010] FWA 526. 9 United Firefighters' Union of Australia v Country Fire Authority [2006] AIRC 563. -- 3 of 5 -- 4 [31] In determining whether to engage in protected action it is reasonable to expect, and in our view a requirement of the Act, that the nature of the proposed industrial action is specified. In our view, this requires employees who will be voting on the questions to understand what work would not be undertaken and what work would remain to be done. The description of the nature of the industrial action in the questions they are asked in the ballot should enable employees to understand the implications for them while at work, and other relevant circumstances.". [19] In arriving at my view that the proposed questions do not sufficiently describe the nature of the proposed industrial action, I remain conscious of the submissions of Ms Edmonds that the actual nature of the industrial action which is to be taken, if the ballot is successful, will be clearly set out in notices provided to DETE in accordance with the provisions of the Act. However, I am also conscious of her submission to the effect that, prior to issuing any such notice(s), QTU's Council will (separately) poll QTU members to ascertain their support for different types of action. [20] To my mind, this highlights the deficiencies in the proposed questions. It might be that a member (or members) of QTU would be prepared to vote in support of a 24 hour stoppage of work whereas the same member (or members) might not be prepared to vote in a support of a stoppage of two hours or four hours duration. The question, as proposed, does not allow the member (or members) to inform QTU, nor ECQ, of their preference through the protected action ballot order process. Rather, any decision about the duration of any stoppage will be left to the QTU's Council. In that respect, it could never be ascertained whether the industrial action ultimately authorised by QTU's Council met the requirements of ss. 176(2) and (3) of the Act. The very dangers highlighted by the Full Bench in John Holland10 at [16] then come to the fore. [21] I also note that for the purposes of Schedule 4 of the Act a protected action ballot order "means an order of the commission requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular industrial action in relation to a proposed agreement.". [22] While noting that any application to the Commission for a protected action ballot order must (only) state "the question to be put to the employees who are to be balloted, including the nature of the proposed industrial action", rather than the particular industrial action, the risk remains that if the question posed to employees is ambiguous and lacking in clarity the industrial action ultimately taken (if the ballot is successful) may be found not to be protected industrial action. [23] Given the above circumstances, and the lack of jurisprudence in this Tribunal in relation to the matter, I think that the wisest, and safest, decision for me to make is to determine that the proposed question to be put to the employees to be balloted does not include sufficient description to enable employees to identify "the nature" of the proposed industrial action which they are being asked to vote upon. Consequently, I am not satisfied that the application meets the requirement of Schedule 4 - s. 3(3)(b) of the Act. In such circumstances I am unable to make a protected action ballot order in the form sought by QTU. [24] However, in the circumstances of this case I think I should indicate to QTU, as well as to DETE and PSC, that had Question One been separated into two questions, the first part dealing with bans and the second with limitations, I would have been prepared to approve those questions. Similarly, if Question Two had referred to stoppages of work, for example, of one, two, four, eight and 24 hours as separate questions, I would have been prepared to approve those questions as well. In relation to DETE's arguments concerning the period of notice which QTU might be required to provide (i.e. that DETE should be provided seven working days notice of any industrial action (see s. 176(6)(b) and Schedule 4 - ss. 8(4) and (5)), if its present application had been approved and the ballot was successful, I can indicate that had I approved QTU's application for a protected action ballot order I would have approved the notice period specified at paragraphs 2(d) in its amended application (i.e. five working days notice). [25] Finally, given that each of the elements set out in Schedule 4 have to be met, and I am not satisfied that the questions contained in QTU's amended application sufficiently identify the nature of the proposed industrial action to be taken, I am not able to issue the protected action ballot order sought. However, this does not prevent QTU from lodging a fresh application for a protected action ballot order which includes a differently framed question, or questions. [26] For the foregoing reasons I refuse the application. [27] I order accordingly. 10 John Holland v AMWU [2010] FWA 526. -- 4 of 5 -- 5 A.L. BLOOMFIELD, Deputy President. Hearing Details: 2012 11 July Released: 11 July 2012 Appearances: Ms T. Edmonds for Queensland Teachers Union of Employees. Mr D. Waters for the Department of Education, Training and Employment. Ms K. McGill for the Public Service Commission. -- 5 of 5 --