Department of Education and Training v Queensland Teachers Union of Employees [2010] QIRC 35

CITATION: Department of Education and Training AND Queensland Teachers Union of Employees (D/2010/43) - Decision <http://www.qirc.qld.gov.au> INDUSTRIAL REGISTRAR Industrial Relations Act 1999 - s. 233(6) - examination of affidavits for substantial compliance with Order of the Commission Department of Education and Training AND Queensland Teachers Union of Employees (D/2010/43) REGISTRAR SAVILL 4 June 2010 Industrial Dispute - Order of the Commission issued on 30 April 2010 - Affidavits examined by Registrar - Substantial compliance by Queensland Teachers Union of Employees with Orders found - No further action required. DECISION Background [1] On 15 April 2010, pursuant to s. 229 of the Industrial Relations Act 1999 (the Act), the Department of Education and Training [DET] lodged in the Registry, a Notification of a Dispute with the Queensland Teachers Union of Employees (QTU). [2] On 29 April 2010 DET applied to the Commission for Orders to be issued, pursuant to s. 230(4) of the Act. After hearing the matter, on 30 April 2010 the Commission issued an Order as follows: "ORDER Pursuant to s. 230(4) of the Industrial Relations Act 1999 the Commission hereby Orders: 1. Members of the Queensland Teachers Union (QTU) employed by the Department of Education and Training (the Department) under the terms and conditions of the Teachers' Award - State 2003 and Department of Education and Training Certified Agreement 2010, referred to herein as "Teachers", not take, or cease, all industrial action, as defined in Schedule 5 of the Industrial Relations Act 1999, associated with the provision of a normal program of instruction and associated duties, including the administration and duties associated with the administration of NAPLAN testing for the period of 11-13 May 2010; 2. The QTU, its officers, agents and employees withdraw all directives associated with the provision of a normal program of instruction and associated duties, including the administration and duties associated with the administration of NAPLAN testing for the period of 11-13 May 2010, to students at Queensland state schools; 3. The QTU, its officers, agents and employees not issue any further directives in relation to the non-provision of a normal program of instruction and associated duties, including the administration and duties associated with the administration of NAPLAN testing for the period of 11-13 May 2010, to students at Queensland state schools; 4. The QTU, its officers, agents and employees forthwith take reasonable steps to advise its members of the contents of these Orders of the Commission; 5. The QTU, its officers, agents and employees forthwith take reasonable steps to ensure its members comply with these Orders of the Commission, that such members not take or cease any industrial action associated with the provision of a normal program of instruction and associated duties, including the administration and duties associated with the administration of NAPLAN testing for the period of 11-13 May 2010, to students at Queensland state schools; 6. The QTU, its officers, agents and employees are not to encourage or incite any member of the QTU not to comply with these Orders; 7. The Department of Education and Training is forthwith to take reasonable steps to ensure that this Statement and Order is distributed, by 12 noon on Tuesday 4 May 2010, to teachers, including casual and relief teachers, who may be required to participate in the administration of NAPLAN testing between 11 - 13 May 2010 inclusive. 8. These Orders of the Commission be complied with and that the QTU advise the Registrar and the Department by affidavit in accordance section 233 (4) of the Act, by 4.30p.m. on Tuesday 4 May 2010 whether there has been compliance with Orders 1, 2, 3, 4, 5 and 6 hereof and, in default of compliance, what steps (if any) have been taken up to that time to comply with this Order; 9. The QTU advise the Registrar and the Department by Affidavit in accordance with section 233 (4) of the Act, by 5pm on Friday 14 May 2010 as to whether there has been compliance with Orders 1, 2, 3, 4, 5 and 6 hereof and, in default of compliance, what steps (if any) have been taken to comply with this Order; -- 1 of 3 -- 2 10. The Department of Education and Training is to advise the Registrar and the QTU by Affidavit in accordance with section 233 (4) of the Act, by 5pm Friday 21 May 2010 as to whether there has been compliance with Orders 1, 2, 3, 4, 5, 6 and 7 hereof and, in default of compliance, what steps (if any) have been taken, to its knowledge, by QTU, its Officers, agents, employees and Members to comply with Orders 1, 2, 3, 4, 5 and 6; and 11. This Order is to operate from midnight on Friday 30 April 2010 until midnight on Sunday 30 May 2010, subject to further Order of the Commission.". Examination of affidavits [3] Section 233(6) of the Act provides that: "At the end of the time stated for filing an affidavit, or the time as extended by the commission, the registrar must - (a) examine all affidavits filed; and (b) if all affidavits required to be filed have not been filed in the stated time - make all necessary further inquiries; to decide whether there has been substantial compliance with the order.". [4] I have examined all affidavits filed. Following are extracts of the relevant parts of all affidavits filed. [5] On 4 May 2010 the QTU filed an affidavit [No 1] declaring amongst other matters: At point 1. The Queensland Teachers Union (QTU) has not yet complied with the orders issued by the Queensland Industrial Relations Commission on Friday, 30 April 2010 in the above matter. At point 4. The QTU intends to submit a further affidavit concerning compliance tomorrow following the QTU Executive meeting. [6] On 5 May 2010 the QTU filed a further affidavit [No 2] declaring amongst other matters: At point 2. The Executive of the Queensland Teachers Union of Employees was informed of the negotiations and the order of the Commission and resolved: THAT Executive note that this dispute, being a national dispute, needs to be resolved in an acceptable manner as discussed and as determined by the Executive of the AEU. THAT Executive determine, given the information available and the situation in relation to this national dispute, that the moratorium be maintained until such time as an alternative decision is made by the AEU Executive for the reasons discussed by Executive. At point 3. Thus the QTU Executive agreed to the lifting of the moratorium subject to the successful conclusion of negotiations with the federal government as determined by the AEU Executive. At point 5. A further AEU teleconference of presidents and general secretaries is scheduled for 4.00 p.m. on the afternoon of 5 May 2010. At point 7. A further affidavit will be provided based on the outcome of the AEU teleconference. [7] On 14 May 2010 the QTU filed a further affidavit [No 3] declaring amongst other matters: At point 5. Thus the QTU Executive agreed to the lifting of the moratorium subject to the successful conclusion of negotiations with the federal government, as determined by the AEU Executive. At point 6. The QTU advised its members of the decision of the AEU Executive and the lifting of the moratorium in QTU members' Newsflash 10-10 Agreement Reached to Settle NAPLAN/My School dispute - Moratorium Lifted. This Newsflash was sent to members in the afternoon of 6 May 2010. A copy of this Newsflash is attached as JCB1 to this affidavit. At point 8. Thus, the moratorium on the implementation of the 2010 NAPLAN tests has been lifted and the NAPLAN tests will proceed. [8] On 21 May 2010 DET filed an affidavit declaring amongst other matters: At point 3 In compliance with paragraph seven of the Order dated 30 April 2010 (the Order), the Director- General of the Department: a. Issued about 6 p.m. on 30 April an email to all Queensland state school Principals advising them that the Queensland Industrial Relations Commission (QIRC) had issued an Order that the bans in relation to the administration of NAPLAN tests were to be lifted from midnight on Friday 30 April 2010. In the email, the Director-General requested that the information be shared with -- 2 of 3 -- 3 teachers as a matter of priority and that the further information, including a web link to the Statement and Order, would be provided in the near future. At point 4. In compliance with paragraph ten of the Order: b. On 6 May 2010, I was advised that the Department's Director-General had received advice from the QTU General Secretary that the moratorium on the administration of NAPLAN tests from 11-13 May 2010 had been lifted. At point 5. I have consulted with the Queensland Studies Authority and can confirm that the NAPLAN tests were conducted from 11-13 May at Queensland state schools as scheduled with the exception of 21 state schools which received prior approval to conduct the tests approximately a week later. The change in scheduled test administration dates was agreed for those schools with a gazetted show holiday occurring on the 11 th , 12 th or 13 th of May 2010 and for two schools in communities within which there had been recent deaths. As such, these exceptions were in no way related to the QTU industrial action but rather were operational in nature. [9] Following the filing of affidavits No 1 and No 2 by the QTU on 4 and 5 May 2010, the Registrar contacted the Commission to ascertain whether an extension of time had been granted for the filing of a further affidavit, as provided for in s. 233(6) of the Act, regarding matter No 8 of the Commissions Order. The Registrar was advised that the QTU had not applied for such an extension of time Conclusion [10] It is clear from affidavit No 1 filed by the QTU, that the QTU did not comply with Orders 2, 3, 5 and 6 of the Commission's Order, as at 4.30 p.m. 4 May 2010. [11] Affidavit No 2 filed by the QTU also did not reveal that the QTU had yet complied with Orders 2, 3, 5 and 6 of the Commission's Order. [12] Affidavit No 3 filed by the QTU, revealed that the QTU had complied with Orders 2, 3, 5 and 6 of the Commission's Order, as at 6 May 2010. [13] The affidavit filed by the Department revealed that the Department had complied with Orders 7 and 10. In particular the affidavit revealed that the Commission's Order had been complied with in that the NAPLAN tests were conducted from 11-13 May 2010 at Queensland State Schools. [14] As per s. 233 (6) of the Act, I am required to examine all affidavits filed to decide whether there has been substantial compliance with the Commission's Order. [15] Although there was a delay of 2 days [between Tuesday 4 May and Thursday 6 May 2010] regarding the QTU complying with parts of the Commission's Order, as the QTU had complied with the Order by 6 May 2010, I am satisfied that there has been substantial compliance with the Commission's Order. [16] Therefore there is no requirement for me to take any further action in the matter [as per s. 233(7) of the Act]. Dated 4 June 2010. G.D. SAVILL, Industrial Registrar. Released: 4 June 2010 -- 3 of 3 --