Australian Education Union-Northern Territory Branch v Commissioner for Public Employment for the Northern Territory

[2013] FWC 9803

[2013] FWC 9803

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418 - Application for an order that industrial action by employees or employers stop etc.

Australian Education Union-Northern Territory Branch
v
Commissioner for Public Employment for the Northern Territory
(C2013/6952)

COMMISSIONER WILSON MELBOURNE, 12 DECEMBER 2013

Application that industrial action by employees or employers stop etc - Northern Territory Administration - Education Services.

[1] The Australian Education Union – Northern Territory Branch (the AEU – NT) seeks an order pursuant to s.418 of the Fair Work Act 2009 (the Act), which deals with orders that industrial action by employees or employers stop, etc.

[2] The orders are sought against the Commissioner for Public Employment of the Northern Territory (the CPE) in respect of teachers employed in the Northern Territory in the public education system. The CPE concedes it is the legal employer of teachers involved and that it is a “national system employer” for the purposes of the Act.

[3] The orders sought by the union are as follows:

“1. TITLE

This Order shall be known as the Commissioner of Public Employment Northern Territory Industrial Action order 2013

2. APPLICATION OR PERSONS COVERED

This Order is binding on:

(a) The Commissioner for Public Employment - Northern Territory; and

(b) His officers, employees, agents, delegates and assigns (howsoever described) [collectively ‘The Commissioner’]

3. DIRECTION THAT INDUSTRIAL ACTION STOP, NOT OCCUR & NOT BE ORGANISED

(a) The Commissioner must cease all unprotected Industrial Action;

(b) The Commissioner must not organize, engage in, or threaten to engage in unprotected Industrial Action;

(c) The Commissioner must stop aiding, abetting, counselling, procuring, inducing or authorising and not aid, abet, counsel, procure, induce or authorise any other person to engage or continue to engage in unprotected industrial action.

(d) The Commissioner is to pay employees all monies owed to them for work performed after the 4 hour strike action ceased on the 19th of November 2013 and 27th of November 2013.

4. DEFINITIONS

For the purposes of this Order, ‘industrial action’ has the meaning provided by s 19 of the Fair Work Act 2009 but does not include protected industrial action within the meaning of s 408 of that Act.

5. SERVICE

It shall be sufficient service of this Order for the Australian Education Union to send it by facsimile or email to the Manager of Employee Relations for the Commissioner.

6. PUBLICATION

The Commissioner shall display this Order in a prominent position on that part of its website used for enterprise negotiation updates and provide a copy of it to all its school principals for display in workplaces

7. DATE OF EFFECT & PERIOD OF OPERATION

This Order shall come into effect on (...) and remain in force until further order”. 1

[4] Mr M O’Donnell, for the AEU-NT, and Mr R Dalton, for the CPE, each sought permission to appear as Counsel, referring to the criteria for the granting of permission for representation by a lawyer contained within s.596 of the Act. Having regard to the statutory criteria, and in particular the enabling of the matter to be dealt with more efficiently taking into account the complexity of the matter, permission was granted.

[5] The background to the matter includes the following;

• The Northern Territory public education system teachers are subject to the Northern Territory Public Sector Teacher and Educator 2010 – 2013 Enterprise Agreement 2, the nominal expiry date of which is 31 August 20133;



• A Protected Action Ballot Order in respect of bargaining for an agreement to replace the existing agreement was made by Vice President Catanzariti on 27 September 2013 4 and the subsequent ballot of eligible employees approved the question put to them;



• Protected industrial action was notified by the AEU – NT to the CPE on 4 November 2013 by email in which it notified the CPE and the Department of Education that members of the AEU – NT would be conducting a whole day stoppage on Tuesday, 12 November 2013 5;



• Further protected industrial action was notified by the AEU – NT on 13 November 2013 in respect of a four hour stoppage by remote and regional teachers on the morning of Tuesday 19 November 2013 6.

[6] The CPE submits, and the AEU – NT did not contradict the submission, that in relation to the protected industrial action notified to occur on 19 November 2013, the CPE notified and took employer response action within the meaning of s.411 of the Act. The submission is that it took employer response action by writing to the AEU – NT on 18 November 2013 and providing notice that;

“...any member who participates in the work stoppage will not be required to return to work on 19 November 2013 and as such will not be paid for one full day. I undertake such action under section 416 of the Fair Work Act in response to the union’s industrial action.

Any member who presents for work at the usual starting time on 19 November 2013 ready to undertake a full day’s work and who performs a full day’s work will be paid accordingly.

Teachers will be notified of the response to this industrial action and the deduction to salary via a bulletin today.” 7

[7] The CPE followed this notification to the union by emailing a bulletin to all staff. It submits that the notification went to all teachers employed by the Northern Territory. The email was apparently sent on Monday, 18 November 2013 at 10:18 AM 8. The CPE submits that employees who participated in the industrial action on 19 November 2013 were not paid for any part of the day, which was processed through pays delivered in the pay cycle commencing 2 December 2013.

[8] On 19 November 2013, the AEU – NT notified the CPE of further protected industrial action to take place on 27 November 2013. Its notification was as follows;

“Dear Mr Davies

I hereby provide notification of industrial action to take place on Wednesday 27th November 2013 in accord with the Protected Action Ballot recently conducted.

Members of the AEU NT employed by DoE will be conducting a four (4) hour stoppage on the morning of Wednesday 27th November, 2013.

This will involve members from all sectors in the Darwin region and Palmerston urban region extending to and including Taminmin College and other Humpty Doo sites, Middle Point and Berry Springs and schools closer to Darwin.

Special arrangements will be made by members on a site by site basis to ensure that no disruption to senior school examinations occurs as a direct result of this action.

Yours Respectfully

Peter Clisby”. 9

[9] The CPE went through a process of notifying purported employer response action in response to this further notification from the AEU – NT. The CPE submits, and the AEU – NT does not contradict the factual aspect of the submission, that;

● It wrote the following in a letter emailed to the secretary of the AEU – NT on 26 November 2013;

“I write regarding your union’s notice of a four hour work stoppage for schools in the Darwin and Palmerston urban region on the morning of Wednesday 27 November 2013.

The four hour work stoppage will, in effect, prevent normal school programs being delivered, cause significant inconvenience to parents, result in low school attendance for the day and will result in some schools being closed. Furthermore, it threatens students’ welfare by significantly disrupting their learning.

As the work stoppage will effectively mean that normal school programs cannot be conducted on the day or for only a very small portion of the day, any member who participates in the work stoppage will not be required to attend duty after the work stoppage on 27 November 2013, I will not accept the performance of any work for the whole day and a full day’s pay will be deducted.

I undertake such action under section 416 of the Fair Work Act in response to the union’s industrial action.

Any member who presents for work at the usual starting time on 27 November 2013 ready to undertake a full day’s work and who performs a full day’s work will be paid accordingly.

Teachers will be notified of the response to this Industrial action and the deduction to salary via a bulletin today.

Yours sincerely

Ken Simpson”. 10

● It sent a bulletin by email to all teaching staff on 26 November 2013 at 11:30 AM. The bulletin included the following;

“This bulletin provides important information relating to the work stoppage and how it will be managed:

• Only members of the AEU-NT and who are covered by the Agreement are eligible to take protected industrial action. Members are not obliged to take industrial action if they do not wish to do so.

● As the work stoppage will effectively mean that normal school programs cannot be conducted on the day or for only a very small portion of the day, any member who participates in the work stoppage will not be required to attend duty after the work stoppage on 27 November 2013. I will not accept the performance of any work for the whole day and a full day’s pay will be deducted.

● Such a response is lawful under the Fair Work Act.

● Any member who presents for work at the usual starting time on 27 November 2013 and who performs a full day’s work will be paid accordingly.

● Any employee who is absent on the 27 November 2013 will be treated as participating in industrial action unless appropriate documentary evidence is provided that indicates otherwise.

● If a non AEU-NT member participates in this action it is considered ‘unprotected industrial action’ and as such will not be paid for the period of the work stoppage and may be subject to disciplinary action resulting from the absence.

● Teachers and educators who are attending work as usual on 27 November 2013 are requested to inform their school principal as soon as possible.

● SESOs, School-based Administration Officers, maintenance officers and school council employees are not lawfully able to take any form of industrial action even if an AEU-NT member.

If you are unsure of your rights or responsibilities during this period of industrial action, contact the Employee Relations team in the Office of the Commissioner of Public Employment on 89 99 4282”. 11

[10] In addition to the above, the CPE circulated a notice on 27 November 2013 requesting principals in turn provide it to teachers and educators. The notice reinforced some aspects of the all-staff bulletin distributed on 26 November 2013 and provided some additional material justifying the CPE’s position. 12

[11] Mr Dalton, Counsel for the CPE, advised that the CPE does not rely upon this notice as evidence that the Commissioner has met the requirements of the Act in respect of notice of its employer response action as contained within s.414(5) of the Act.

[12] Mr O’Donnell, Counsel for AEU – NT submits that the CPE has, in respect of its purported employer response action relating to 27 November 2013, failed to follow the notice requirements for the taking of employer response action. In particular, the AEU – NT submits that the CPE has failed to follow the requirements contained within s.414(5) of the Act. The subsection provides as follows;

“414 Notice requirements for industrial action

...

Notice requirements—employer response action

(5) Before an employer engages in employer response action for a proposed enterprise agreement, the employer must:

(a) give written notice of the action to each bargaining representative of an employee who will be covered by the agreement; and

(b) take all reasonable steps to notify the employees who will be covered by the agreement of the action”.

[13] The AEU – NT submits that the requirement within the subsection to “take all reasonable steps” should be seen in the context of the action taken, or proposed to be taken. The notices of 26 and 27 November cannot be seen as compliance with the requirement. In particular it cannot be seen as reasonable to post a bulletin the day before the taking of the employer response action or to rely upon a notice that may or may not have been circulated by principals or other employees engaged in managerial duties. The AEU – NT submitted that in order to take all reasonable steps the notice would either have to be given physically to all teachers concerned or emailed or faxed to them, but in sufficient time for them to act on the notification. It was submitted that it was apparent from what actually transpired that some teachers and principals did not receive the Department’s notifications at all.

[14] The AEU – NT also submits that the CPE has not complied with the requirement in s.414(6) of the Act which requires;

“414 Notice requirements for industrial action

...

Notice requirements—content

(6) A notice given under this section must specify the nature of the

action and the day on which it will start”.

[15] The AEU – NT submits that such notification as may have been given did not adequately specify the nature of the employer response action or the day on which it started. Further, the notification is not an effective notice because it does not specify that employees must leave the work premises. In addition the notice is not a proper notice since it is clear from the evidence that gainful work and teaching could, and did, take place. This latter submission is a reference to a number of emails contained within the statutory declaration of Mr Clisby, Secretary of the AEU – NT 13, which are correspondence from the union’s members advising of things that transpired in the schools or workplaces in which they worked.

[16] Counsel for the CPE submits that the notification it provided of the employer response action was adequate and in conformity with the Act. It submits that the Commissioner’s letter to the AEU – NT on 26 November 2013 was in relatively equivalent terms as sent to the union on 11 November 2013 with respect to the protected industrial action notified to take place on 19 November 2013.

[17] The CPE also submits that the employer response action, being “industrial action” as defined within s.19 of the Act is necessarily in the past. That is the employer response action took place on 27 November 2013 when it locked out employees who had participated in the AEU – NT’s protected industrial action from returning to the workplace. The withholding of payment with respect to that day is a payment issue, not an industrial action issue, and one which is in the future. The CPE submits that what the AEU – NT is really complaining about in its application is the non-payment of the lockout, which is the employer response action and which has already happened. It argues that the deduction of pay for the AEU-NT’s protected industrial action and the CPE’s employer response action is not industrial action. As a result the CPE submits there is no work to be done from an order made under s.418, which would have current or forward operation.

[18] The CPE also submits that a further reason that the AEU – NT application cannot succeed is that protected industrial action of all types has been suspended as a result of the Order given by the Commission on 2 December 2013 which suspended protected industrial action for a period of three months from 3 December 2013 14.

[19] In considering the AEU – NT’s application, which is an application pursuant to s.418 of the Act, I must necessarily have regard to the provisions which are as follows;

“418 FWC must order that industrial action by employees or employers stop etc.

(1) If it appears to the FWC that industrial action by one or more employees or employers that is not, or would not be, protected industrial action:

(a) is happening; or

(b) is threatened, impending or probable; or

(c) is being organised;

the FWC must make an order that the industrial action stop, not occur or not be organised (as the case may be) for a period (the stop period) specified in the order.

Note: For interim orders, see section 420.

(2) The FWC may make the order:

(a) on its own initiative; or

(b) on application by either of the following:

(i) a person who is affected (whether directly or indirectly), or who is likely to be affected (whether directly or indirectly), by the industrial action;

(ii) an organisation of which a person referred to in subparagraph (i) is a member.

(3) In making the order, the FWC does not have to specify the particular industrial action.

(4) If the FWC is required to make an order under subsection (1) in relation to industrial action and a protected action ballot authorised the industrial action:

(a) some or all of which has not been taken before the beginning of the stop period specified in the order; or

(b) which has not ended before the beginning of that stop period; or

(c) beyond that stop period;

the FWC may state in the order whether or not the industrial action may be engaged in after the end of that stop period without another protected action ballot.”

[20] Whether or not the events complained of are “protected industrial action” requires consideration of the “common requirements” set out in s.413 and s.414 of the Act. The submissions as provided by Counsel for both parties agree that the critical issue in the first instance is whether or not there has been compliance on the part of the CPE with the provisions of s.414(5) of the Act referred to above, which deal with the notice requirements for employer response action.

[21] I am satisfied that the CPE gave written notice of its proposed employer response action to the AEU – NT in its capacity as a bargaining representative. There was no submission in these proceedings that any other person or entity is a bargaining representative. The form of the written notice is set out in exhibit A1, tab 12 and contains sufficient particularity for it to satisfy the requirements for notification as contained in s.414(5)(a) of the Act.

[22] I am also satisfied that the CPE gave written notice of its proposed employer response action to the employees who will be covered by the proposed agreement and that in the circumstances it took all reasonable steps to notify them of its proposed action. While the AEU – NT makes the point that its own notification to the CPE was some days earlier to the date on which the action was to take place, whereas the CPE notification was the day before the employer response action, I am satisfied that there was sufficient notice from the CPE to satisfy the obligation set out within s.414(5)(b) of the Act. In this regard I note that the notification from the CPE was emailed to all staff at about 11:30 AM on the day before the employer response action. This is sufficiently before staff would have left for the day on 26 November for it to be consistent with the obligation to take all reasonable steps to notify the employees who will be covered by the agreement of the action.

[23] Having reviewed the notices provided by the CPE to the Secretary of the AEU – NT and to all staff, I am satisfied that each notice specifies the nature of the employer response action and the day on which it will start. I note that each notice specifies that any member of the AEU – NT “who participates in the work stoppage will not be required to attend duty after the work stoppage on 27 November 2013. I will not accept the performance of any work for the whole day and a full day’s pay will be deducted.”

[24] As a result I am satisfied that the provisions of s.414(6) of the Act have been complied with.

[25] Accordingly, I find the CPE notified its employer response action in a manner which was consistent with the provisions of s.414 of the Act. The employer response action was therefore consistent with the Act’s “common requirements” for industrial action to be protected industrial action.

[26] I also find that the other requirements for employer response action, as set out in s.411 of the Act, have been met. The CPE’s industrial action was in response to the AEU-NT’s industrial action (s.411(a)) and was organised or engaged in by an employer that would be covered by the proposed agreement (s.411(b)).

[27] The CPE’s industrial action was accordingly protected industrial action.

[28] The necessary jurisdictional fact contained within s.418 “that industrial action by one or more employees or employers that is not, or would not be protected industrial action” is therefore not made out.

[29] It therefore follows that I must dismiss the AEU – NT’s application in this matter, and I now do so.

COMMISSIONER

Appearances:

Mr M O’Donnell, of Counsel, and Mr P Clisby for the Australian Education Union - Northern Territory Branch

Mr R Dalton, of Counsel,and Mr M Hathaway for the Commissioner of Public Employment

Hearing details:

2013.

Melbourne:

December 12.

 1 F11 Application lodged on 10 December 2013, attachment

 2   AE883177

 3   [2010] FWAA 9972, at [5]

 4   PR542639

 5   Exhibit R1, tab 7

 6   Ibid, tab 8

 7   Ibid, tab 9

 8   Ibid, tab 10

 9   Exhibit A1, PC1

 10   Exhibit R1, tab 12

 11   Ibid, tab 13

 12   Exhibit A2

 13   Exhibit A1

 14   PR545220

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