Department of Education and Training v Queensland Teachers Union of Employees (No. 2) [2009] QIRC 45 (2009) 191 QGIG 387

[Extract from Queensland Government Industrial Gazette, dated 14 August, 2009, Vol. 191, No. 13, pages 387-388] QUEENSLAND INDUSTRIAL RELATIONS COMMISSION Industrial Relations Act 1999 - s. 148 - assistance in negotiating by conciliation Department of Education and Training AND Queensland Teachers Union of Employees (CA/2009/71) COMMISSIONER ASBURY 31 July 2009 DECISION This is an application by the Department of Education and Training (the Department) seeking that the Queensland Industrial Relations Commission (the Commission) refer for arbitration, a dispute associated with the negotiation of a certified agreement with the Queensland Teachers Union of Employees (QTU). The application is made on the grounds in s. 149(1)(b) of the Industrial Relations Act 1999 (the Act). That section applies if the Commission considers that it is not likely that further conciliation will result in the matter being settled in a reasonable time, considering, among other things, the history of industrial relations in the enterprise or industry to which the proposed agreement is to relate. Once a matter is referred for arbitration under s. 149(1)(b) of the Act, s. 149(3) applies so that industrial action organised or engaged in while the Commission determines the matter by arbitration, is not protected. After considering the totality of the material before the Commission and the submissions of the parties, I am satisfied that the requirements in s. 149(1)(b) for the matter to be referred to arbitration have been met, and that this should occur. The Commission has now conducted six conferences of the parties, and there is no resolution in sight. The public position of the QTU continues to be that unless the wages expectations of its members are met, there will be no agreement. This is the case regardless of whether what is being sought is said to be "justice" or salaries commensurate with those paid to teachers in other States. On Wednesday 29 July 2009, I indicated that it was inevitable that this dispute would go to arbitration. I continue to hold that view. In the interests of the matter going to arbitration by agreement, I issued a recommendation in an attempt to break the impasse between the parties. That recommendation has not been taken up by the QTU. The QTU position is that a ballot of members is being conducted to ascertain whether the recommendation is accepted. This process is expected to take in the order of two weeks. I accept that the QTU has democratic processes and that it wishes to ascertain the views of its members. However, the ballot to determine whether members of the QTU are prepared to accept the Recommendation of the Commission, will be conducted in an environment where members have been informed, before they vote in the ballot, that the QTU Executive has rejected that Recommendation. Further, Officials of the QTU have made a number of public statements which clearly indicate that the Recommendation has little if any prospect of being accepted. Late on 29 July 2009, the QTU notified the Department of a 48 hour stoppage effective from Thursday 6 August 2009. The ballot for this stoppage was underway before the Recommendation of the Commission was issued on 29 July 2009. However, there is material before the Commission to indicate that the dispute is being escalated following the Orders and Recommendation of the Commission on 29 July 2009. While such a stoppage is technically in conformity with Orders issued by the Commission on 29 July in terms of notice being provided, it is not conducive to a measured consideration of the Recommendation which was also issued by this Commission on that date. This is particularly the case when the stoppage was escalated before a ballot to ascertain members' views on the Recommendation was completed. I also note the public statements attributed to the Executive of the QTU in the Courier-Mail of 30 July 2009, that the Union would accept arbitration in return for a pay increase of 5.4%. This statement is a public confirmation of an offer previously made on a without prejudice basis. The statement confirms that the QTU is not opposed to arbitration under s. 149 of the Act subject to an acceptable interim wage increase being made available. The removal of rights to take protected industrial action is part and parcel of arbitration. This is the case whether arbitration occurs by consent or as a result of the Commission referring a matter for arbitration. The present position of the parties is that the QTU's agreement for the matter to go to arbitration is contingent on an interim wage increase that it deems acceptable. The Department has accepted arbitration on the basis of a 4% interim -- 1 of 2 -- 2 wage increase in accordance with the Commission's Recommendation. The Department has placed a proviso on that acceptance to the effect that the QTU give an undertaking that there will be no further industrial action. Whether the QTU gives the undertaking or not is a moot point given that industrial action ceases to be protected while a dispute is being arbitrated under s. 149 of the Act. Effectively the only issue preventing this matter from being arbitrated by consent of the parties, is the quantum of any interim wage increase. I am of the view that both parties have effectively conceded that this matter should be arbitrated, and that in itself indicates that further conciliation about the making of a certified agreement is futile. If there is no agreement on an interim wage increase, then all wage increases and operative dates will need to be determined as part of the arbitration of the dispute. Obviously I will not be involved in the arbitration of the dispute. In the past, arbitration under s. 149 has been before members of the Commission sitting as a Full Bench. If that practice continues, then a minimum of three Members of the Commission will be required to constitute the Full Bench. I have had a preliminary discussion with the President of the Commission to attempt to ascertain the likely time frame in which arbitration could commence. On the basis of current workloads and availability of Members of the Commission, there will be a long delay in commencing arbitration of this matter. If the parties enter into arbitration without having further discussions to narrow the range of issues to be arbitrated, the arbitration will be protracted. In the context of the current dispute, it is also likely that in an environment in which there is no agreement about entering into arbitration, and in particular no agreement on an interim wage increase, the parties will not be able to have meaningful discussions to narrow the issues between them. It is this scenario that my Recommendation of 29 July 2009 was designed to avoid. I consider that it is not likely that further conciliation will result in this matter being settled in a reasonable time. I hereby refer this matter to arbitration under s. 149 of the Act. Order Accordingly. I.C. ASBURY, Commissioner. Hearing Details: 2009 20, 22, 24, 27, 28, 29, 30 and 31 July Released: 31 July 2009 Appearances: Mr D. Waters, Mr T. Barlow and Mr R. Wotherspoon for the Department of Education and Training. Ms K. Seed, Mr G. Moloney and Mr K. Bates for the Queensland Teachers Union of Employees. Government Printer, Queensland The State of Queensland 2009. -- 2 of 2 --