Department of Education and Training v Queensland Teachers Union of Employees [2009] QIRC 44 (2009) 191 QGIG 383

[Extract from Queensland Government Industrial Gazette, dated 14 August, 2009, Vol. 191, No. 13, pages 383-386] 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 29 July 2009 DECISION AND ORDER This is an application under section 148 of the Industrial Relations Act 1999 (the Act) by the Department of Education and Training (the Department), for assistance in making a certified agreement. The Commission has conducted at least three extensive conferences of the parties. During those conferences the Commission has been informed about the progress of the negotiations and the positions of the parties in relation to various outstanding issues between them. There is disagreement about how the parties have arrived at the present impasse. Each of the parties contends that the other is at fault for the situation they are currently in. Regardless of where fault lies, I am of the view that the current situation cannot continue and that intervention of the Commission under s. 148 of the Act is required. In proceedings in the Commission representatives of the Queensland Teachers Union of Employees (the QTU) have consistently argued that there are a range of issues between the parties upon which negotiations can meaningfully occur, and that there has been no breakdown in negotiations. This submission is at odds with the public position of the QTU. The public position of the QTU is effectively that unless and until Queensland teachers are paid salaries that are seen as commensurate with those paid to their interstate counterparts, there will be no agreement and industrial action will continue. The QTU maintains that its industrial action is protected and should be allowed to continue. The QTU also seeks a Recommendation or Order of the Commission to require the Department to continue to negotiate in the face of bans and threatened industrial action. Representatives of the Department have maintained that the real issue between the parties is the quantum of wage increases and that this issue is not capable of being further negotiated. The Department has also maintained that Orders to stop or prevent all industrial action by the QTU should be issued on the basis that it is not prepared to negotiate with the QTU while there is threatened or actual industrial action. Further, the Department contends that the industrial action imposed by the QTU - in particular bans on implementing national partnership arrangements and the proposed 24 hour stoppage on 5 August 2009 - are threatening or have caused significant damage to the economy and the community or are threatening to endanger the personal health, safety and welfare of the community or a part of it. I do not entirely accept the arguments of either party. I can see no basis for ordering the Department to continue to negotiate with the QTU. The Department is quite within its rights to refuse to negotiate in circumstances where there are bans and limitations on steps required to implement arrangements for the receipt of significant amounts of Commonwealth Government funding, and where the QTU has reinitiated a 24 hour stoppage which it has scheduled for 5 August 2009. It is also the case that the QTU has given every indication of continuing such action until it achieves its wages objectives. On the other hand, the QTU is within its rights to seek to advance its negotiating position through protected industrial action. By the terms of the Act, there are limits on the Commission's power to make orders to stop protected industrial action. The Act provides an important balance between the rights of unions to advance their legitimate industrial interests on the one hand, and the rights of employers and the community not to suffer economic or other damage or danger on the other. The Department has sought orders against the QTU and its members under s. 148 of the Act. The Commission cannot make such orders unless it is satisfied that the conditions set out in that section are met. My decision in relation to the application for Orders is as follows. The peace obligation period prescribed in s. 147 of the Act has expired. I am satisfied that negotiations for a certified agreement have broken down, and that the real and substantial issue over which they have broken down is the quantum of wage increases. I am also satisfied that there is no reasonable prospect that there will be an agreement between the parties if they are left to their own devices. -- 1 of 3 -- 2 This is not a case where there are a number of issues which are capable of being negotiated to the point where there is an agreed package. There is an insurmountable gulf between the wages expectations of the QTU on the one hand and the capacity of the Department to pay wage increases on the other hand. Even if all outstanding issues other than wages were to be negotiated until they were agreed, I am of the view that no final agreement could be reached because of the wages issue. I have formed this view after observing and listening to the positions of the parties at three relatively lengthy conferences before me. I am satisfied that the bans currently imposed by the QTU on the implementation of National Partnership Agreements in relation to Improving Teacher Quality; Numeracy and Literacy; and Low Socio-Economic Status Schools are threatening or have caused significant damage to the economy, community, or local community or part of the economy. In this regard I am satisfied that the bans place at risk Commonwealth funding under the National Partnership Agreements. I am also satisfied that there are real prospects of adverse impacts for students and their communities if the bans are not removed. I am not satisfied that other bans which the QTU has in place are having a similar effect. Accordingly I will issue Orders under sections 148 and 230(4) of the Act to require that the industrial action of the QTU and its members, constituted by bans and limitations on the implementation of National Partnership Agreements, cease forthwith and that no further bans in relation to these matters are imposed. I am not satisfied on the evidence currently before me, that 24 hour stoppages of the kind which has been scheduled for 5 August 2009, are threatening or have caused significant damage to the economy, community, or local community or part of the economy. There is no economic data before the Commission to indicate such damage. There is no evidence before the Commission from members of the public or interest groups representing the public about damage. There is no evidence that the personal health, safety and welfare of the community or part of it is threatened by 24 hour stoppages. On the evidence before me there will be significant disruption to students and their parents. However, this is not of itself sufficient to justify the Commission issuing an Order that prevents industrial action that is protected under the Act. However, I do accept that unless seven clear days' notice is provided for proposed stoppages, there is insufficient time for the Department to ensure that parents are notified and to enable alternative supervision arrangements to be put in place to ensure student safety. Accordingly, I am satisfied that there are grounds for an Order to be issued to the effect that there will be no strike action involving refusal to provide a normal program of instruction to students, without the QTU first providing seven clear days' notice of the date on which any such stoppage will occur. The effect of this order will be that the seven days' notice excludes the day that the notice is given and the day that the industrial action occurs so that seven clear days' notice is required to be given by the QTU. There have been mixed messages in the media about the status of the industrial action which is intended to be taken on 5 August 2009. In my view, this means that if such action is taken, there will not be seven clear days' notice to enable the Department to put in place alternative supervision arrangements and to ensure that parents and students are fully informed. Accordingly, I intend to issue an Order requiring that the 24 hour stoppage scheduled by the QTU for 5 August 2009 not occur. The Department has requested that this matter be referred to arbitration but on the basis that the Commission also issues Orders requiring that all industrial action cease. For the reasons I have already given, I do not intend to grant Orders in the form sought by the Department. The QTU concedes that arbitration is inevitable, but maintains that the matter should not be referred for arbitration at this stage, to enable further negotiations between the parties to occur. I do not share the view of the QTU that any further negotiations will result in final agreement being reached. In my view, there is no question that this dispute will end in an arbitrated outcome. The only question is how and when the dispute goes to arbitration. In an attempt to resolve this dispute, I intend to make a Recommendation. The parties have two choices. They can accept the Recommendation or they can continue with their present courses of action, subject to compliance with the Orders I have indicated will be made. I Recommend that: 1. The parties agree to arbitration under s. 149 of the Act; 2. There will be an interim wage increase of not more than 4% effective from 1 July 2009; and 3. That the interim wage increase will be subject to: • The parties using their best endeavours to narrow the range of issues in dispute prior to the commencement of arbitration; and • The parties immediately committing to the implementation of the National Partnership Agreements. -- 2 of 3 -- 3 In my view, if the Recommendation is not accepted and the present positions of the parties are maintained, the most likely scenario is that: • The QTU will continue to take industrial action in the form of stoppages subject to giving seven clear days' notice of such stoppages; • The Department will continue to exercise its right to refuse to negotiate with the QTU while it is taking or threatening to take industrial action; • Teachers will lose pay while they take industrial action; • Parents and students will suffer disruption; • That disruption will cause real and measurable damage to the economy and to the community; • If the industrial action becomes protracted and causes such damage the conditions for arbitration under s. 149 will be met; • The parties will end up engaged in a protracted arbitration; and • Unless there is agreement between the parties on an interim wage increase prior to or during the arbitration, any wage increases, and the operative date for such increases will need to be arbitrated. I ORDER THAT: 1. Members of the QTU employed by the Department under the terms and conditions of the Teachers' Award - State 2003 (the Award) referred to herein as "Teachers" cease all industrial action within the meaning of the definition of "Strike" in Schedule 5 of the Act including those associated with standard work practices and procedures outlined in point 1 of the QTU's Advice at Attachment A, until further order of the Commission. 2. Teachers take no industrial action within the meaning of the definition of "Strike" in Schedule 5 of the Act, associated with the provision of a normal program of instruction to students at all Queensland schools, without providing seven clear days' notice to the Department of the date and time upon which such action will commence. Such notice period excludes the day upon which notice is given and the day on which the industrial action is to commence. 3. The QTU, its officers, agents and employees withdraw all directives associated with the provision of a normal program of instruction to students at all Queensland state schools and issue no further directives which are in contravention of the terms of this Order. 4. The QTU, its officers, agents and employees forthwith take reasonable steps to ensure its members comply with these Orders of the Commission, and procure such members to stop any industrial action associated with the provision of a normal program of instruction to students at all Queensland state schools and performance of standard work practices and procedures, other than in accordance with these Orders. 5. The QTU, its officers, agents and employees forthwith take reasonable steps to advise its members of the contents of these Orders of the Commission. 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. These Orders of the Commission be complied with and that the QTU advise the Industrial Registrar and the Department by affidavit in accordance with section 233(4) of the Act, by 5.00 p.m. on Wednesday 29 July 2009, as to whether there has been compliance with the Orders and, in default of compliance, what steps (if any) have been taken to comply with these Orders. 8. The Orders (1) to (7) operate from 12.00 noon on Wednesday 29 July 2009 and thereafter until further order of the Commission. 9. That service of these Orders be effected by reading them to officers of the QTU and providing those officers with a copy of these Orders in these proceedings. Order Accordingly. I.C. ASBURY, Commissioner. Hearing Details: 2009 20, 22, 24, 27, 28 and 29 July Released: 29 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. -- 3 of 3 --