Application by Independent Education Union of Australia

[2018] FWC 6819

[2018] FWC 6819

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.

Application by Independent Education Union of Australia
(B2018/966)

COMMISSIONER SIMPSON BRISBANE, 20 NOVEMBER 2018

Application to suspend or terminate protected industrial action - endangering life etc.

[1] On 22 October 2018 the Independent Education Union of Australia (the IEUA) made an application under s.424 of the Fair Work Act 2009 (theAct) for an Order from the Fair Work Commission (FWC) for termination of protected industrial action against The Baptist Union of Queensland – Carinity (Carinity).

[2] The IEUA submitted the protected industrial action was being engaged in and was threatened, impending or probable, and was endangering life, or personal safety, health or welfare of the population or part of it, or was causing significant damage to the Australian economy or an important part of it.

[3] In its application the IEUA set out the particulars of its application as follows:

“(a) The protected industrial action which was endorsed in a ‘Protected Action Ballot’ is as follows:

(i) employees will not attend, for an indefinite period, meetings of staff; and

(ii) employees who are teachers will ban, for an indefinite period, any duties during their scheduled “Planning Preparation and Correction Time” other than preparation directly related to the teaching of students and the assessment or marking of student work; and

(iii) an indefinite ban on the recording, or transmission to the employer, of assignment, assessment or exam results relating to students, provided that the ban will not be applied to either year 12 students or students who are leaving the School; and

(iv) an unlimited number of stoppages of work for 60 minutes duration which may be taken separately, concurrently or consecutively; and

(v) employees will delay responding to and/or actioning emails (except for emails which deal with: a genuine health or safety matter for employees or students; or child protection matters) for a period of time – such period will not exceed 30 days.”

(b) A bargaining meeting occurred on 1 November 2017. A teleconference then occurred on 9 November 2017. After these two events the employer unilaterally put a proposal to ballot.

(c) On 14 November 2017 the IEUA notified that, at three of the four schools operated by the employer, the action identified in (a) and numbered (i), (ii), (iii) and (v) above would commence on 22 November 2017.

(d) On 14 November 2017 the IEUA notified that, at three of the four schools operated by the employer, the action identified in (a) and numbered (iv) above would occur in the form of a single stoppage on 29 November 2017.

(e) The ballot referred to in (b) above opened on 22 November 2017 and closed on 27 November 2017.

(f) The result of the ballot was that the employer’s proposal was rejected. There were 35 votes against the proposal, and 25 votes in favour of the proposal.

(g) A bargaining meeting occurred on 6 December 2017 where employee representatives tabled further positions. Such positions were to be considered by the employer.

(h) It must be noted that a period of school vacation occurred between early December 2017 and late January 2018.

(i) Protected industrial action was not immediately recommenced so as to allow bargaining to resume at the beginning of 2018.

(j) On 16 March 2018 the IEUA notified that, at three of the fours (sic) schools operated by the employer, the action identified in (a) and numbered (i), (ii), (iii) and (v) above would commence on 26 March 2018.

(k) The protected industrial action notified in (j) above is ongoing.

(l) On 16 April 2018 the IEUA notified that, at three of the four schools operated by the employer, the action identified in (a) and numbered (iv) above would occur in the form of a single stoppage on 24 April 2018.

(m) The IEUA sought the assistance of the FWC by way of a ‘bargaining dispute’. A conference occurred by telephone on 23 May 2018, and a further conference occurred in person on 6 June 2018. Neither conference produced any real progress.

(n) The employer again unilaterally put a proposal to ballot. This ballot opened on 19 July 2018. The ballot was counted on 2 August 2018.

(o) In this second ballot the employer’s proposal was again rejected. The results on this occasion being 48 against, and 14 in favour.

(p) On 22 August 2018 the IEUA notified that, at three of the fours (sic) schools operated by the employer, the action identified in (a) and numbered (iv) above would occur in the form of four consecutive one hour stoppages on 30 August 2018.

(q) On 10 September 2018 the IEUA notified that, at two of the fours (sic) schools operated by the employer, the action identified in (a) and numbered (iv) above would occur in the form of a single stoppage on 18 September 2018.

(i) (sic) On Monday 15 October 2018 the IEUA notified that, at two of the fours (sic) schools operated by the employer, the action identified in (a) and numbered (iv) above would occur in the form of a single stoppage on 23 October 2018.”

[4] The IEUA submitted therefore “it is obvious that protected industrial actions is both being engaged in and further such action is threatened, impending or probable” and therefore satisfies s.424(1)(a) and (b). It further submitted that the protected industrial action has threatened, is threatening, or would threaten to endanger the welfare of a part of the population, and that this satisfies s.424(1)(c).

[5] The IEUA submitted that the schools operated by Carinity exist for the sole purpose of providing education to vulnerable young people who have disengaged from the education system. The work undertaken by such education providers is crucial in ensuring that young people receive an education and can then participate in society.

[6] Carinity operates four schools, Southside Education in the Brisbane suburb of Sunnybank for girl’s years 7 to 12, Glendyne at Hervey Bay, a co-educational school for years 6 to 12, Rockhampton, a co-educational school for years 7 to 11 and Gladstone, a co-educational school for years 7 to 10.

[7] The IUEA submitted in its application that:

“The continued industrial action is having an adverse impact on the welfare of the ‘at risk’ students who attend the employer’s schools. The effect on the students will have the very real potential to impact society and the population more generally.”

[8] On 23 October 2018 I issued an uncontested interim order pursuant to s.424(4) for reasons given in transcript that all protected industrial action engaged in by employees of The Baptist Union – Carinity Education is suspended until the application in this matter was determined.

Evidence

[9] Mr John Spriggs, Senior Industrial Officer appeared for the IEUA and Ms Darwin appeared for Carinity. At the commencement of the hearing on 6 November 2018 Mr Spriggs made clear that the application was pressed on the basis of alleged endangering of the welfare of part of the population.

[10] The IEUA provided an affidavit 1 from Mr Spriggs attesting to the industrial action taken. Mr Spriggs was not required for cross examination. Ms Catherine Vero, a teacher at Southside Education adopted her affidavit2 and supplementary affidavit3 filed as her evidence. Mr Degan Bunting, a youth worker for student wellbeing at Glendyne adopted his affidavit4 and supplementary affidavit5 as his evidence. Both Ms Vero and Mr Bunting gave further oral evidence.

[11] The Baptist Union filed an affidavit from Ms Christine Hill, 6 the Executive Manager of Educational Services with Carinity in response to the application.

[12] Employee Absentee reports for the preceding six months for Southside and Glendyne were tendered into evidence 7 through Ms Hill.

[13] Ms Vero gave evidence she had been employed as a teacher at the Southside School for approximately ten years, and had worked as a librarian in a school for approximately 30 years prior to that.

[14] Ms Vero said that the students at Southside Education have social and or emotional disabilities. Ms Vero said consequently the relationships between students and staff are crucial and the success of these relationships is fundamental to learning and development they seek to facilitate with students.

[15] Ms Vero said there are approximately 120 students attending Southside Education and all are female. She said a significant number of students are subject to formal child protection intervention from the State and have been victims of abuse and find it hard to form trusting relationships. She said the protected industrial action is adversely impacting relationships and learning developments of the students. She also gave evidence that the students at Southside Education benefit from routine which has subsequently been disrupted by the protected industrial action.

[16] Ms Vero said at paragraph 12 of her first affidavit that students at Southside Education had recently asked about their academic results and because of the ban on transmission of results, she had to advise that the result would not be provided. Ms Vero claimed that this answer resulted in upset to students involved. It was put to Ms Vero that she was given instructions by her Principal to say that the discussion of the protected action was between staff and not to be discussed with students. Ms Vero said the conversation may have occurred but she did not recall it.

[17] Ms Vero said anything which disrupts the routine of students disrupts their security, and consequently has an adverse effect on their learning. Ms Vero said she has observed that students display greater anxiety after their class has been supervised by another employee due to her absence caused by participation in the protected industrial action. Ms Vero said students do not concentrate well, or complete their work well, when supervised by a new teacher.

[18] Ms Vero said that the requirement for trust and the additional importance of relationships at Southside is unique. Ms Vero said in her personal experience the protected industrial action had a negative impact on the students.

[19] It was put to Ms Vero that other events occur that disrupt student routine such as excursions. She accepted that but said students were prepared for excursions. Ms Vero accepted that nine of the approximate 33 staff at Southside took industrial action on 29 November 2017 (in the form of a one hour stop work meeting) and she also agreed that the school continued to operate on that day by planning ways to accommodate for the students during the strike.

[20] Ms Vero accepted 11 of approximate 33 staff took part in the industrial action on 24 April 2018 (in the form of a one hour stop work meeting) and steps were taken by the school to accommodate the situation. Similarly Ms Vero accepted that 11 staff at Southside participated in strike action on 30 August 2018 (in the form of four consecutive one hour stop work meetings) and again steps were taken to accommodate the situation. Ms Vero accepted ten staff took part in the action of 18 September 2018 (in the form of a one hour stop work meeting) and steps were taken to accommodate that.

[21] Ms Vero said if an employee was on unplanned personal leave staff are assigned additional classes. Ms Vero said students can get upset if there is a change to their routine. It was put to Ms Vero that five staff were absent on a day that she took leave. She said she was unaware of that. It was put that there have been in the range of three to five staff have been absent on the same day for unplanned leave and she accepted that could be true.

[22] In response to the affidavit of Ms Hill, Ms Vero said that students may sometimes have a different teacher in their classroom for myriad reasons, but that does not mean that they like or accept it, and she had personally witnessed manifestations of students anxiety from change.

[23] Ms Vero said she was unaware of any reporting of student results being issued at the end of term three by Southside teachers.

[24] Ms Vero said that after the FWC suspended protected industrial action the Principal instructed that semester reports be completed by 2 November 2018. In response to Ms Hill’s evidence at paragraph 26 of her affidavit Ms Vero said that students had been sent home as a result of the industrial action. Ms Vero also said that colleagues who take someone else’s lesson share information regarding the behaviour and well-being of students in informal “change-over” discussions.

[25] Mr Bunting gave evidence that the students at Glendyne have additional special needs and do not participate in a regular school model. He said that for the students attending the school, a consistent routine is of great benefit. Mr Bunting provided evidence that the protected industrial action disrupted the daily routine for students and that he has spoken to students who have said they have felt unsettled and anxious as a result. He said he noticed students have been “off task” and have been displaying negative behaviour as a result of the protected industrial action.

[26] Mr Bunting said that the routine is disrupted when staff, other than usual staff, are supervising students. He said routine is also disrupted when the usual staff member is not the one available for discussions with a student.

[27] Mr Bunting said students at Glendyne had not experienced consistency and routine in their lives but the students rely on staff to provide consistency and routine in their lives.

[28] Mr Bunting said the impact on students in the industrial action causes staff to question their participation in it and that is why the staff supports the application to have the industrial action terminated.

[29] In response to Ms Hill’s affidavit Mr Bunting said it was true that all staff have some knowledge of all students, but it was his experience at Glendyne that students have a primary teacher and primary case worker that they depend on.

[30] Mr Bunting also said that at Glendyne there have been staff absent on the stop work days and there had been consequences as a result of lower levels of supervision, and referred to one example of a student suspended because he was caught unsupervised at the front of the school ‘giving the finger’ to the media outside the school. He accepted students were aware there were boundaries around the school that they were not to go outside. It was put to Mr Bunting that the student he referred to had been warned three times that day for being outside the area he was supposed to be. It was also put to Mr Bunting that the student in question had been spoken to on 158 occasions and given 24 warnings. Mr Bunting said those warning related to different incidents. He accepted that the student had been suspended 6 times. It was put to Mr Bunting that there had not been protected industrial action occurring on the other occasions the student had been spoken to or been suspended. Mr Bunting said two of these suspensions were connected to changes in the student’s routine.

[31] Mr Bunting also said in response to paragraph 27 of Ms Hill’s statement that it had been his experience that when daily routine is disrupted that students are not aware of or prepared for; that students have been irritated by routine change causing behavioural issues; and on the days of the stop work action students have had their routine broken causing them to be ‘off task’ and causing negative behaviours.

[32] Mr Bunting accepted that there were in the order of 33 staff at Glendyne school. He accepted that 12 staff took part in the industrial action on 29 November 2017, (one hour stop work meeting) and nine staff took part on 24 April 2018, (one hour stop work meeting) and seven on 30 August 2018 (four consecutive one hour stop work meetings) and that five staff took part on 18 September 2018 (one hour stop work meeting).

[33] Mr Bunting indicated that he was aware that on 15 October the IEUA notified intended industrial action on 23 October and the IEUA subsequently sought termination of the industrial action.

[34] Mr Bunting accepted that unplanned things occur at the school, including staff having to take unplanned leave. Mr Bunting said when staff are absent other staff fill in and take classes. Mr Bunting said this causes behaviours that have negative impacts.

[35] It was put to Mr Bunting that three or four staff are off at given times for personal leave, especially during flu season and he accepted this, and he accepted that the school put in place actions to deal with this. It was also put to Mr Bunting that in the previous week Ergon had turned power off and actions had to be put in place including students being sent home and he accepted this.

[36] It was put to Mr Bunting that unplanned events help prepare students for the real world. Mr Bunting accepted that the school sent a letter to parents to prepare for the industrial action.

[37] Ms Hill gave evidence she was onsite at Southside for the stop work meeting on November 29, 2017, April 24 and September 18 and was onsite at Glendyne stop work meeting on August 30.

[38] Ms Hill said prior to her current role she had been in the role of Principal of Carinity Education Southside since 14 March 2011 and had worked in the field of education for 33 years.

[39] Ms Hill said she had accessed information from the Human Resource System to prepare her affidavit. Ms Hill said at the time of preparing her affidavit there were 33 staff employed at the Carinity Southside and 33 staff employed at Glendyne, Hervey Bay.

[40] Ms Hill said there are currently 129 students on role at Carinity Southside and 98 students at Carinity Education Glendyne.

[41] Ms Hill said as special assistance schools, Carinity schools are designed to cater for students who have disengaged or are disengaging from mainstream schooling. Ms Hill said that Carinity schools are structured as small communities and all staff on site are familiar with all students on site and trusting relationships are developed between staff and students. Ms Hill said there is a high ratio of staff numbers to student numbers which includes Teachers, Youth Workers and School Officers, and the schools have a high emphasis on social and emotional learning to meet student needs.

[42] Ms Hill said the protected action in the form of stop work meetings occurred on the following dates with the following number of staff participating as told to her by the relevant Principals at the schools:

a) 29 November 2017, 12 staff on protected action at Hervey Bay and nine at Southside;

b) 24 April 2018, nine staff participated at Hervey Bay and 11 at Southside;

c) 30 August 2018, seven staff participated at Hervey Bay and 11 at Southside;

d) 18 September 2018, five staff participated at Hervey Bay and ten at Southside.

[43] Ms Hill said she was onsite at Southside on 29 November 2017, 24 April and 18 September 2018, and she was onsite at Hervey Bay on 30 August 2018. Ms Hill said the meeting on 29 November 2017 was held on a student free day at Southside.

[44] Ms Hill said at both sites there has been a continuity of service during stop work meetings, and less than one third of staff have participated in any action on each occasion there has been a stop work meeting. It was put to Ms Hill that less than one third of 33 would be ten or less and she accepted that, and appeared to accept that number of staff on given dates taking industrial action may not have been less than one third.

[45] Ms Hill said that during stop work meetings students have been cared for by other trusted staff members and students have not been required to be cared for by anyone other than staff employed at each site.

[46] Ms Hill claimed that there have been no more staff absent during stop work meetings than on any occasion during the winter influenza season. Ms Hill said that staff at both sites regularly fill in for absent colleagues and students are accustom to this occurring.

Withholding of results

[47] Ms Hill said that up until this point, no results have been withheld from students and reports have been distributed at the end of each semester during the on-going enterprise bargaining negotiations. In her oral evidence Ms Hill said both Southside and Glendyne had provided results to students at the end of each semester. It was put to Ms Hill the practice has been that the results are provided to students at the end of each term as well as each semester.

[48] Ms Hill said when she was Principal at Southside reports were provided at alternating dates (mid semester) but they did not contain academic results and only a statement of progress. Ms Hill accepted no interim (end of term) report was provided this year at end of third term. Ms Hill said when she was Principal interim report did not provide an A to E result as required by the Government at the end of each semester.

[49] Ms Hill said that on hearing results may be withheld for this semester, alternative arrangements have been made by Carinity to ensure all students receive school reports with results at the conclusion of the semester.

[50] Ms Hill said she has been a member of Carinity’s representatives at the bargaining table and bargaining commenced on 14 June 2017 and the parties agreed to meet fortnightly, with the exception of the school vacation, to negotiate.

[51] Ms Hill said both Carinity and the IEUA had prepared a log of claims and both parties have and are continuing to negotiate in good faith at the bargaining table. Ms Hill said during the bargaining process both parties have amended their positions, however the IEUA have run a campaign for employees to vote against the agreement.

[52] Ms Hill agreed with the ballot results as stated by the IEUA. Ms Hill said that on 15 October 2018 she received a copy of a notification for a 60 minute stop work meeting to be held on Tuesday 23 October 2018, and on 16 October 2018 one day after the notification, the IEUA made an application to the FWC to terminate the action, which they subsequently withdrew, and refiled on 22 October 2018.

[53] Ms Hill said the industrial action was not causing significant harm, however because of alternative arrangements that have needed to be put in place to deal with the industrial action, Ms Hill described the industrial action as inconvenient. Ms Hill said she did not believe the industrial action was endangering the personal safety or welfare given the actions taken in response to it.

[54] Ms Hill said in response to paragraph 12 of Ms Vero’s evidence that the schools have made other arrangements to ensure that students receive their results on time, and the routine of students has not been adversely affected by the stoppages.

[55] Ms Hill said in response to Ms Vero’s claim at paragraph 16 of her statement (that students have displayed greater anxiety after their class had been supervised by another employee due to her absence) that it is difficult for Ms Vero to make this observation if she was not present when another employee supervised the class. Ms Hill said this disruption to students is no less harmful than compared to a teacher who cannot attend class because the teacher is absent for illness or other personal reasons.

[56] In response to Ms Vero’s claim at paragraph 26 of her statement that the protected industrial action has had a negative impact on the students, Ms Hill said that she has not witnessed, nor has she been informed by Principals in the schools that have had protected industrial action, that it has had a negative impact on students.

[57] In response to the evidence in Mr Buntings statement, Ms Hill said that she disagrees the protected industrial action has significantly disrupted the daily routine. In response to Mr Buntings evidence at paragraph 8 (that he had experienced students becoming more easily irritated) Ms Hill said that students become irritated for a range of reasons and she cannot agree with the conclusion that students have been irritated solely because of the protected industrial action, and the change in student behaviour would have to be assessed objectively and not subjectively.

[58] In response to Mr Bunting’s statement at paragraph 10 (where he had observed that the protected industrial action has resulted in students being ‘off task’ and displayed changed and negative behaviours) Ms Hill said she has not witnessed nor has she been informed by the Principals in the schools of this.

[59] Ms Hill was taken to correspondence attached to the supplementary statement of Ms Vero dated 28 August 2018. Ms Hill accepted that a number of students may have chosen to have gone home on the 30 August 2018.

[60] Ms Hill was asked what the two unsuccessful ballot results had caused her to believe about the documents voted down. Ms Hill said the two documents were different. It was put to Ms Hill that Carinity’s attitude to reducing the quantum of long service and reducing the employer superannuation co-contribution had not changed. Ms Hill responded that Carinity’s attitude had changed. Ms Hill said Carinity increased and improved its offer on at least three or four occasions since the second ballot. Ms Hill said the offer had been to provide one week of long service leave per year and that had changed to 1.3 weeks per year for current employees.

[61] Ms Hill accepted that Southside received additional funding from the State Government in connection with a small proportion of students who are subject to protection orders. Ms Hill said Carinity had also changed its position offering to reinstate some employer superannuation co-contributions, and also the quantum of the pay offer.

Closing Submissions

[62] Mr Spriggs submitted the evidence demonstrates protected action was engaged in, and was threatened pending or probable. He said the IEUA relied on the ‘welfare’ element of s.424(1) and the part of the population being the school community.

[63] Mr Spriggs said these schools dealt with the specific needs of students not dealt with by other schools, and that the evidence showed the industrial action was adversely affecting the students causing them to be upset and unsettled, and the action was breaking the routines of the schools and the action was causing anxiety amongst students and causing negative behaviors and even resulted in non-attendance of students.

[64] It was put that the evidence of the two witnesses for the IEUA was from persons dealing directly with students as compared to Ms Hill for Carinity.

[65] The IEUA relied on the decision of Kaufman SDP in Ambulance Victoria v Liquor, Hospitality and Miscellaneous Union 8and referred to paragraph 29 where it was said that the level of satisfaction required was satisfaction that the protected action ‘would threaten’ to endanger, and not ‘would endanger’. The Union submitted there is a threat to endanger the welfare of the students attending the schools. The Union also referred to paragraphs 30 to 32 of the decision in Ambulance Victoria where Kaufman SDP considered definitions of the terms “threaten” and an earlier decision considering the meaning of “welfare” and “endanger”.

[66] The IEUA also relied on paragraph 35 of Ambulance Victoria where it was observed that despite the best efforts of the employer in that matter to minimise the impact of industrial action, delayed responses by ambulances would have threatened to endanger the welfare of those waiting for them.

[67] The IEUA also referred to paragraph 37 of the Full Bench decision in National Tertiary Education Union v Monash University (NTEU v Monash) 9 which reads as follows:

“[37] We do not consider that these submissions answer the University’s case. It may be accepted that the occasioning of stress and anxiety in the normally understood and experienced sense is not sufficient to constitute an endangerment to health or welfare for the purpose of s.424(1)(c). Stress and anxiety are part of the ordinary travails of human existence, and in the university context it can readily be accepted that anything to do with examinations, including the issuing of results or any delay thereto, is likely to lead to stress and anxiety to some degree on the part of most students. That is not sufficient to attract a finding under s.424(1)(c). However, Ms Trembath’s evidence had a different import. Four main propositions emerge from her evidence: first, university students generally fall into an age cohort which has a peak vulnerability to diagnosable mental health disorders, with university students reporting higher levels of anxiety-related disorders than the norm for their age group; second, the indefinite Results Ban constitutes a significant additional psychological stressor which may either cause a diagnosable mental health disorder or exacerbate an existing one; third, a proportion of students in this position will be unable or unwilling to seek assistance, including accessing the NTEU exemption system; fourth, the potential adverse consequences for such students include acts of self-harm, threats of suicide and completed suicide. Understood in this way, we consider that her evidence convincingly demonstrates a threatened endangerment to student health and welfare capable of satisfying the s.424(1)(c) criterion.”

[68] In relation to the first point made by the Full Bench in the above paragraph Mr Spriggs submitted the students of Carinity are students who have already displayed multiple signs of vulnerability and disengagement. He submitted that the fact that Carinity students fall within a cohort vulnerable to further problems is clear.

[69] In relation to the second point, Mr Spriggs said the evidence of Vero and Bunting was unchallenged that the industrial action was causing stress and anxiety for the students.

[70] In relation to the third point, Mr Spriggs submitted that in this case the stress and anxiety of the students will limit the ability to staff to assist those students.

[71] In relation to the fourth point, Mr Spriggs submitted that it is only required to show the potential for adverse consequences and this has been shown on the evidence.

[72] Mr Spriggs also referred to paragraph 38 of the Full Bench decision in NTEU v Monash to repeat the point that no actual detriment to welfare is required to be proved, and that s.424(1)(c) is concerned with threatened endangerment.

[73] Mr Spriggs said it was unhelpful to add words to the words of the statute for the purposes of determining whether the group constituted part of the population, and again referred to the decision in NTEU v Monash. 10

[74] In relation to the nature of the order sought the IEUA submitted that termination rather than suspension was the appropriate course. The Union submitted that given bargaining has been ongoing for in the order of 16 months, there had been no shortage of attempts to negotiate and even Carinity’s witness Ms Hill said negotiations had been occurred in good faith, and there had been two unsuccessful ballots, termination of bargaining was the appropriate course. Mr Spriggs submitted the facts of this case were distinguishable from NTEU v Monash for the purposes of determining that the industrial action should be terminated rather than another course such as suspension.

[75] Mr Spriggs accepted a further meeting had occurred where some adjustments to the last offer rejected at ballot had now been proposed by Carinity.

[76] Mr Spriggs accepted a matter such as Ergon’s decision to turn off power to the school, or unplanned personal leave of teachers may threaten the welfare of students, however those matters are not a basis to determine the industrial action does not threaten students’ welfare.

[77] Ms Darwin submitted that there must be actual danger or peril in order for the FWC to act upon. Ms Darwin referred to the following excerpt from the Explanatory Memorandum to the Fair Work Bill 2008:

“1708. The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognize that, while protected industrial action is legitimate during bargaining for an enterprise agreement, there may be cases where the impact of that action on the parties or on third parties is so severe that it is in the public interest, or even potentially the interests of those engaging in the action, that the industrial action cease – at least temporarily.

1709. It is not intended that these mechanisms be capable of being triggered where the industrial action is merely causing an inconvenience. Nor is it intended that these mechanisms be used generally to prevent legitimate protected industrial action in the course of bargaining.”

[78] Ms Darwin accepted the students at Carinity were vulnerable, however Ms Darwin submitted that both witnesses for the IEUA accepted that disruptions happen in a school environment. Ms Darwin submitted that the protected action was an inconvenience as it generated more work for the Principals at the schools, however if anything the protected industrial action had been a positive for the students in learning, as in ordinary life, disruptions happen and measures have been put in place to deal with it. Ms Darwin said the witnesses for the union were asked about unplanned personal leave to show that this is an everyday occurrence and the students get used to these events.

[79] In response to the IEUA’s submission that Ms Hill was not directly engaged with students, Ms Darwin referred to Ms Hill taking a class when one of the strikes was occurring at the Glendyne school, and Ms Hill had also been a Principal at Southside school.

[80] Ms Darwin said part of the duty of the school is to prepare students for life outside of the school. Ms Darwin also said there was no evidence of students being put at risk. In relation to the example of the student who had been suspended Ms Darwin said that in cross examination it was put to Mr Bunting the student in question had received numerous warnings and suspensions unrelated to the protected industrial action. Ms Darwin said the evidence did not support a conclusion that s.424 was enlivened, and bargaining between the parties should continue.

[81] In reply submissions Mr Spriggs correctly pointed out that words referred to by Ms Darwin that arose from s.423 were irrelevant to this application. Also in response to a submission from Ms Darwin he returned to his earlier point that the IEUA does not need to show that the industrial action has endangered the welfare of students but that it has, is or would threaten to endanger.

[82] Mr Spriggs also said with reference to exhibits 7 and 8 that the question of whether staff on personal leave were staff that dealt directly with students or not was not made clear by Carinity.

Consideration

[83] The FW Act is clear that unlike s.423(1), s.424(1) does not afford the FWC discretion once it reaches a state of satisfaction that the criterion in the section are met, and it must make an order either suspending or terminating the action once so satisfied.

[84] There has been no contest that the protected industrial action has been engaged in and further action is threatened, impending or probable so on that basis the criterion in s.424(1)(a) and (b) is satisfied. The question is whether the FWC is satisfied that the various forms of industrial action being categorised into types (1), (2), (3), (4) and (5) has threatened, is threatening, or would threaten the welfare of the students at the schools.

[85] Of the four schools to be covered by the proposed agreement the application only refers to industrial action being taken or threatened at three of the four schools being Southside, Glendyne and Gladstone. Apparently there has been no industrial action taken or threatened at Rockhampton.

[86] The correspondence attached to the affidavit of Mr Spriggs indicates that of the types of industrial action authorised by the ballot, at three of the schools from 17 November 2017 actions commenced in the form of (1) employees not attending meetings of staff; (2) teachers banning duties during “Planning Preparation and Correction Time” other than preparation related directly to the teaching of students and the assessment of marking of student work; (3) banning the recording or transmission to the employer, of assignment, assessment or exam results relating to students, provided that the ban will not be applied to either year 12 students or students who are leaving the School; and (5) employees delaying responding to and/or actioning emails (except emails which deal with: a genuine health or safety matter for employees or students; or child protection matters) for a period of time – such period will not exceed 30 days.

[87] Further to this a one hour stoppage of work as authorised by industrial action type (4) occurred from 9.00am to 10.00am on 29 November 2017 at the three schools, although Ms Hill’s evidence that the meeting on 29 November 2017 was held on a student free day at Southside was not challenged.

[88] It appears from the application the forms of industrial action types (1),(2),(3) and (5) stopped a few weeks later in early December 2017 as the school year came to an end and no further industrial action occurred at the three schools until actions were recommenced under actions types (1), (2), (3) and (5) from 26 March 2018 and were ongoing until the industrial action was suspended by order of the FWC on 23 October 2018.

[89] Further to this action one hour stoppages occurred from 9.00am to 10.00am on 24 April 2018 at the three schools. Then on 30 August 2018 four consecutive one hour stoppages occurred at two of the four schools being Southside and Glendyne from presumably 12.15pm to 4.15pm although it was not expressly stated in the evidence. It was not in contest that seven of approximately 33 staff participated in the stoppage at Glendyne and 11 of approximately 33 staff participated at Southside on 30 August in the longer stoppage.

[90] Then on 18 September 2018 a one hour stoppage occurred at Glendyne where five of approximately 33 staff participated and at Southside where ten of approximately 33 staff participated. The Union had notified on 15 October 2018 of intended one hour stoppages at Glendyne and Southside at 8.30am on 23 October however the IEUA brought this application on 22 October. I understand these stoppages did not proceed and the FWC issued an interim order suspending industrial action on the day of the earlier proposed action of 23 October.

[91] The Union has relied in part on the NTEU v Monash matter. In that matter a Full Bench upheld the Universities appeal and suspended a Results Ban. In that matter the Results Ban applied at the University and included a range of exemptions from the Results Ban and 660 of 881 student applications for exemptions from the Ban, or 75% had been granted.

[92] It is apparent that the IEUA on behalf of its members has endeavoured to utilise the various methods available to it within the legislation to achieve an improved offer from Carinity, including by pursuing this application to terminate the bargaining. However the evidence demonstrates that the relatively low level of participation by the workforce in the industrial campaign has resulted in the industrial action having a lower level of impact.

[93] Witness evidence was only led concerning protected industrial action at two of the four schools being Southside and Glendyne so there has been no direct witness evidence from the IEUA concerning the nature of the impact at Gladstone, and given it appears no action has occurred at Rockhampton it is safe to assume it has had no impact there.

[94] The witnesses provided little specific evidence about the impact of the forms of industrial action actions types (1), (2), (3) and (5) with the exception of some limited evidence about the ban on results which appeared to indicate that interim (end of term/mid semester) reports, rather than end of semester reports may have been impacted. Ms Hill said these interim reports did not provide an A to E result as required by the Government at the end of each semester.

[95] Ms Hill said that on hearing results may be withheld for this semester, alternative arrangements have been made by Carinity to ensure all students receive school reports with results at the conclusion of the semester.

[96] The evidence of Ms Vero and Mr Bunting lacked specific examples of a threat or potential threat of endangering students welfare. Their evidence instead spoke in general terms about levels of irritation and anxiety and poor behaviours that in their opinion could be linked to the protected industrial action. This fairly vague and subjective evidence was insufficient to ground satisfaction that the industrial action had threatened, is threatening or would threaten to endanger the welfare of the students at the Carinity schools.

[97] The evidence in this case is distinguishable from the facts in NTEU v Monash where the detailed evidence of a registered psychologist who was employed as a Director of Mental Health and Safer Communities engaged in the Universities Counselling Service was accepted by the Full Bench in order for it to be satisfied about the potential impact of results bans on the welfare of University Students. In NTEU v Monash the Full Benches satisfaction regarding s.424(1)(c) was arrived at in the context of 9000 university students being enrolled in semester two courses without having their results for relevant semester 1 prerequisite courses. The situation risked students who had enrolled in semester 2 courses finding out that they had failed a prerequisite course and being removed, or having to remove themselves. This would result in time and effort being wasted and loss of an opportunity to repeat the prerequisite course in semester two. It may also have resulted in students incurring nonrefundable fees. Alternatively, if the student remained in the semester two course their ability to complete the course would be compromised leading to significant disruption to academic progression.

[98] In contrast, in this case at its highest, the evidence has indicated that students (bearing in mind the results ban does not apply to year 12 students or students who are leaving the school) may not have received mid semester progress reports that do not contain formal grades. The limited evidence indicates to this point students have been receiving their reports at the end of each semester and the evidence does not show that students will not receive those results this semester.

[99] There is insufficient evidence to be satisfied that the forms of action in types (1), (2), (3) or (5) meet the requirement to be satisfied in s.424(1)(c).

[100] I am also not inclined to the view that the three one hour stoppages on 29 November 2017, 24 April 2018 and 18 September 2018, or the longer four hour stoppage of 30 August, or the threatened one hour stoppage on 23 October 2018 of themselves or taken together have threatened, are threatening or would threaten to endanger the welfare of students given the proportion of staff participating, and their duration and frequency in the broader context of the reality of a school environment facing a range of potential issues on a day to day basis that may can impact on scheduling.

[101] I have taken into account the evidence concerning the unique nature of the student cohort and challenges in the Carinity schools but I have not been satisfied from the evidence that those factors shift the balance in favour of the IEUA on the facts as presented.

[102] I prefer Ms Hill’s evidence describing the industrial action up until now as more inconvenience, and not as yet causing significant harm, and that alternative arrangements have been put in place so far to successfully ameliorate the potential impacts of the industrial action.

[103] The facts of this case demonstrate that the workforce as a group have twice rejected by ballot Carinity’s proposals for an enterprise agreement, the first time in November 2017 by a margin of 35 votes against verses 25 votes in favour, and a second time by a bigger margin in a ballot counted in August 20 by a margin of 48 votes against and 14 votes in favour. However the evidence also demonstrates with regard to the work stoppages that while a clear majority is voting against Carinity’s offers, a minority of the workforce are participating in the protected industrial action to seek to improve Carinity’s offer.

[104] I have also noted the evidence of Ms Vero at paragraph 26 of her first affidavit, and Mr Bunting at paragraph 16 of his first affidavit. This evidence is to the effect that staff have questioned participation in industrial action because of its impact on students. It would appear some reluctance of staff to participate in the industrial campaign out of a concern for the welfare of students may be having a limiting effect on the impact of the industrial actions taken. On the basis of the findings above the application is dismissed. In accordance with the terms of the interim order issued on 23 October 2018 and s.424(4) of the Act, the suspension of the protected industrial action is lifted, and the interim order lapses, as the application has now been determined.

COMMISSIONER

Appearances:

Mr J. Spriggs appearing on behalf of the Applicant

Ms M. Darwin appearing on behalf of the Baptist Union of Queensland - Carinity

Hearing details:

2018,

Brisbane:

November 6

Final written submissions:

Printed by authority of the Commonwealth Government Printer

<PR702063>

 1   Exhibit 1.

 2   Exhibit 2.

 3   Exhibit 3.

 4   Exhibit 4.

 5   Exhibit 5.

 6   Exhibit 6.

 7   Exhibit 7 and 8.

 8   [2009] FWA 44.

 9   [2013]FWCFB 5982.

 10 [2013]FWCFB at [19].