Commissioner for Public Employment v Australian Education Union-Northern Territory Branch
[2013] FWC 9479
•3 DECEMBER 2013
[2013] FWC 9479 |
FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.424 - Application to suspend or terminate protected industrial action - endangering life etc.
Commissioner for Public Employment
v
Australian Education Union-Northern Territory Branch
(B2013/1526)
COMMISSIONER WILSON | MELBOURNE, 3 DECEMBER 2013 |
Application to suspend or terminate protected industrial action - endangering life, personal safety or health or welfare.
[1] This is an application pursuant to s.424 of the Fair Work Act 2009 (the Act) for the suspension or termination of industrial action for the reasons articulated in s.424(1)(c), namely that the protected industrial action has threatened, is threatening or would threaten to endanger life, the personal safety or health, or the welfare of the population or of part of it.
[2] The application relates to teachers engaged in public schools throughout the Northern Territory.
[3] This decision was originally given in transcript on 2 December 2013. Certain aspects of these reasons for decision have been edited or expanded upon.
[4] The application for a s.424 Order was made by the Commissioner for Public Employment of the Northern Territory (CPE) at the same time as another application by the CPE pursuant to s.418 of the Act, being an application for an Order that industrial action by employees stop. At the resumption of the hearing on 29 November 2013, the CPE confirmed that the s.418 application would be withdrawn.
[5] The Draft Order sought by the CPE in this matter is as follows;
- In the form of an unlimited number of Territory wide, Regional or Sub Branch stoppages of work of 1 hour to one whole working day in duration or bans or limitations on the manner in which is undertaken, which may be taken separately, concurrently or consecutively.
“A. Pursuant to s. 424(1)(c) of the Fair Work Act 2009 the Fair Work Commission orders that the following protected industrial action being taken by employees of the Commissioner for Public Employment whose bargaining representative is the Australian Education Union-NT Branch be suspended for a period of six months:
B. This order takes effect at 8.00 AM on 3 December 2013”. 1
[6] At the commencement of the proceedings on 2 December 2013, the CPE advised in response to concerns indicated by the Australian Education Union – Northern Territory Branch (AEU – NT) that it would be content with an Order that was restricted to the bans actually in place and not as wide as that indicated in the CPE’s draft above.
[7] The background to the dispute between the CPE and the AEU – NT includes that the AEU – NT sought and obtained a Protected Action Ballot Order from Vice President Catanzariti on 27 September 2013 2. The Australian Electrical Commission proceeded to hold the ballot as required and reported it was approved by the majority of voters casting a valid vote.
[8] On Monday 25 November, the AEU – NT branch secretary, Mr Peter Clisby, wrote to the CPE advising of the commencement of protected industrial action in the following terms;
“Dear Mr Davies,
I hereby provide notification of industrial action to take place from Monday 25th November 2013 in accord with the Protected Action Ballot recently conducted.
Members of the AEU NT employed by DoE and covered by the Teacher and Educator Agreement will be implementing the following bans and limitations effective from Monday 25th November 2013:
1. Members will not electronically enter daily, lesson or session class rolls into SAMS 3
2. Members will perform their duties during normal work hours. The Teacher Responsibilities Guide states that teachers have normal work hours of 36 hours and 45 minutes a week and it is expected that a teacher's work will usually be able to be done in that amount of time. Members will work for 7 hours 21 minutes per day.
Members of the AEU NT employed by DoE and covered by the Teacher and Educator Agreement will continue with these bans and limitations until instructed by the AEU NT that the action is to cease.
Yours Respectfully
Peter Clisby” 4
[9] This notification of protected industrial action is, I am advised, one of several such notifications to date. In addition to the notification which is the subject of these proceedings there has been the following protected industrial action 5;
● A 24-hour stoppage of teachers;
● A four hour work stoppage of regional and remote teachers;
● A four hour work stoppage for teachers in the Darwin and Palmerston regions;
● A restriction of duties to seven hours 21 minutes work.
[10] In addition to the above notification of industrial action, the AEU – NT communicated with its members the following;
● On 20 November 2013
“Ban on SAMS
It is important that you know which students are in your class for a number of reason but most obviously for safety in the event of an emergency. We advise our members to keep a class roll manually or on your desk top. Our action will is simply that we will not enter this information into SAMS.” 6
● On 21 November 2013
“Today the AEU NT has responded to Commissioner, Mr Ken Simpson, who is threatening to lodge an application in the Fair Work Commission to have our ban on entering class rolls into SAMS suspended.
As with his threat to deduct a full day’s pay from those members who went back to work on Tuesday (and took lessons, did yard duties or just continued work in their non-school position!) it remains up to Mr Simpson as to whether he carries through.
I am sure members understand that my focus has been defending our right to continue our industrial actions. However, I do assure you that a case will be prepared to stop the pay cuts (or to recover them if Mr Simpson can think of other clever ways to keep us busy)
What Mr Simpson is really telling us is that the ban on SAMS will really hurt the Department.
It is a very serious problem to them and has absolutely minimal impact on our students and programs.
However, there is a need for us to be clear on what we are doing:
BAN ON SAMS
DO NOT ENTER ATTENDANCE DATA INTO SAMS (or allow someone else to do it for you).
KEEP A MANUAL ROLL OR ONE ON YOUR DESKTOP.
KEEP YOUR ROLL(S) SAFE, DO NOT DESTROY THEM.
WHEN OUR INDUSTRIAL ACTION IS COMPLETE, PLEASE THEN GIVE YOUR ROLL(S) TO YOUR PRINCIPAL.” 7 (emphasis removed)
● On 26 November 2013
“The Full Time Officers of the AEU-NT believes these bans and limitations have already been implemented in most schools and are working effectively.
Despite this, we have received a number of enquiries about these work bans and limitations in recent days. Specifically, many questions have been asked about the ban on marking an electronic roll (SAMS).
We have been made aware that many teachers have been asked for their manual daily or session rolls from principals' who then intend for the roll to be electronically entered into SAMS by administrative staff at the school.
We have also been advised that some principals have instructed administrative staff to enter classrooms and to take the roll themselves at the start of lessons.
Do NOT allow this to occur - as a teacher, you control your class and activities occurring within it. Be assertive and clear - the taking of a roll is your responsibility!
You are NOT required to hand over these attendance rolls. Indeed, we are advising members to withhold these rolls until the cessation of this dispute.
You cannot be disciplined or get into any trouble for refusing to hand these daily rolls to the school.
This is protected industrial action!” 8 (emphasis removed)
[11] For the purposes of this decision I refer to the notification by the AEU-NT, that “[m]embers will not electronically enter daily, lesson or session class rolls into SAMS” together with the instructions given by the union in the three communications referred to above as “the Class Rolls” ban and find they are one and the same protected industrial action.
[12] The CPE submits that the effect of the protected industrial action, as implemented, is to potentially endanger the safety and welfare of school students who attend the Northern Territory schools. This is said to come about because, in the absence of the class roll information, the schools will be unable to reliably know which students have failed to attend school at all on a particular day, or who have left without permission part way through the day (for example after the recess or lunch breaks). Likewise, schools may not be able to indicate reliable information to enquiring parents or truancy officers or other social welfare staff and may not be able to reliably supervise parental custody exchanges at the end of school day.
[13] The CPE is also concerned that, since the ban is indefinite and the Commissioner is not optimistic about the likely success of a ballot for a proposed enterprise agreement which closes on 20 December 2013, the unavailability of class roll information will have significant effects for schools students and parents at the start of the 2014 school year when decisions have to be made about identification and management of “at risk” and other students requiring close attention. The current school year ends in mid-December and the 2014 year starts around the beginning of February.
[14] In summary, it is the AEU – NT’s case that there is no endangerment to the population or part of it as a result of the Class Rolls ban. This is because manual rolls are still being kept by teachers; and that AEU – NT members will cooperate with the Department of Education in the event an immediate safety issue arises. Finally, and notwithstanding the earlier written direction to members, teachers will cooperate in allowing the Department to introduce alternative class roll collectors.
[15] While noting the submission of the AEU-NT on these matters, their submission is contrary to their statements to members and the evidence before me does not suggest that the Class Roll protected industrial action is being implemented other than in accordance with the union’s public statements.
[16] In contrast to the AEU-NT’s submissions, the CPE’s case is the absence of accurate class rolls causes a significant risk to students and others. It means that schools are unable to exercise their duty of care at times of emergency, or in respect of “at risk” students, or students who are involved in parental custody exchanges which are often supervised by teachers at the end of the school day. The CPE submits that in assessing the impact of protected industrial action or whether the population or part of it is endangered, the FWC needs to do so using the ordinary meaning of the words within the section and that in doing so, the FWC does not need to apprehend there is a universal risk to the population or part of it, merely that there is an identifiable risk to some part. The CPE submits that the risks which are evident are bolstered by the indefinite nature of the Class Rolls ban.
[17] Other than the matters I have referred to above, the evidence in this matter includes that of the following;
- For the CPE
- Marion Guppy, Executive Director Arnhem, Palmerston and Rural Regions; former principal of Darwin High School; and
- Graham Chadwick, Principal, Nightcliff Primary School.
- For the AEU-NT
- Stephen Pelizzo, Vice President General of the AEU-NT; has been a principal for over 10 years
[18] Ms Guppy’s evidence included that she was familiar with the use of SAMS as a management tool from which to source information about students, including the day-to-day monitoring of attendance; that she saw SAMS as a “timely comprehensive tool to be able to monitor kids, as part of a response to the care and welfare of children” 9; and that;
“The effect of having attendance data withheld is the daily risk to students around their safety and wellbeing. A school's capacity to meet its accountability requirements, especially in critical situations, is compromised.” 10
[19] Ms Guppy was also adamant that her main concern was with the withholding of Class Rolls information.
[20] Mr Chadwick reinforced the centrality of the SAMS information to his role as a Principal, the functioning of a school and its exercise of its duties of care. His evidence included that;
“Not entering data into SAMS affects our duty of care for the health and safety of students and our requirement to know where every student is; not just at the beginning of school, but after the morning and afternoon breaks as well.” 11
[21] He also attested that the absence of SAMS information could affect the health of certain students with registered medical conditions; and that the consequence of not having the knowledge SAMS contained “render a school blind to where students are located on campus or their whereabouts at any given time”. Mr Chadwick’s evidence also included details about how senior teachers used and relied upon the information within SAMS 12;
“8. There have been occasions when a student has attended in the morning and not been at the school after recess or lunch. There are some students who have other needs as well: students who are on a spectrum and ADHD; or children who are generally low in their IQ and understanding. They may decide to just walk off the campus.
9. As soon as we become aware that a student is not on the grounds the whole team swings into action to search the ground and the local community. Without the recording of the information into SAMS, we would be unaware until the end of the day that there had been an issue.
10. SAMS also helps us with families who have certain legal conditions, especially in the mornings. When there are parenting arrangements between different families, one person will call the school to see whether the other person has met the terms of their agreement and that their child has attended school.
11. In the mornings we use the SAMS information and monitor those requirements. Parents have the expectation that we have the answer for them in the office and that we do not need to go to the class to find out.
...
14. There is an expectation that we will always know this information. Their expectations are so high that we have an obligation to know where a child is at every point during the day. At 8.15 am every day, we need to know every child that is in the school grounds.”
[22] Mr Pelizzo gave evidence on behalf of the AEU and provided a different perspective of the use of SAMS. His evidence suggested that good management of students and the risks associated with them required face-to-face contact and discussions directly with teachers, rather than through the information contained within SAMS. He noted that in all cases the primary responsibility for the maintenance of accurate student attendance records remains with the classroom teacher 13. He also gave evidence that he “cannot imagine an explicit situation where not having SAMS attendance data would directly ... result in heightening the risk of harm to a student”14 and that he did “not believe that the availability of SAMS data will have any real influence on student safety should a school be required to go into a lock down situation.”15
[23] Mr Pelizzo also observed that:
“SAMS would only play a major role in an emergency (as opposed to effective use of paper roles by teachers) where the schools procedures or practices were so dysfunctional as to be the critical matter, not the use of SAMS or otherwise.” 16
[24] Consideration of this matter requires the application of s.424 of the Act to the evidence before me. The section provides as follows;
424 FWC must suspend or terminate protected industrial action— endangering life etc.
Suspension or termination of protected industrial action
(1) The FWC must make an order suspending or terminating protected industrial action for a proposed enterprise agreement that:
(a) is being engaged in; or
(b) is threatened, impending or probable;
if the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten:
(c) to endanger the life, the personal safety or health, or the welfare, of the population or of part of it; or
(d) to cause significant damage to the Australian economy or an important part of it.
(2) The FWC may make the order:
(a) on its own initiative; or
(b) on application by any of the following:
(i) a bargaining representative for the agreement;
(ii) the Minister;
(iia) if the industrial action is being engaged in, or is threatened, impending or probable, in a State that is a referring State as defined in section 30B or 30L—the Minister of the State who has responsibility for workplace relations matters in the State;
(iib) if the industrial action is being engaged in, or is threatened, impending or probable, in a Territory—the Minister of the Territory who has responsibility for workplace relations matters in the Territory;
(iii) a person prescribed by the regulations.
Application must be determined within 5 days
(3) If an application for an order under this section is made, the FWC must, as far as practicable, determine the application within 5 days after it is made.
Interim orders
(4) If the FWC is unable to determine the application within that period, the FWC must, within that period, make an interim order suspending the protected industrial action to which the application relates until the application is determined.
(5) An interim order continues in operation until the application is determined.
[25] The AEU – NT makes the point in its communication to members on 21 November 2013 17 that the proof of the effectiveness of its bans is in the CPE’s application in these proceedings. Such point is consistent with the articulation in Alcoa of Australia Ltd v Australian Workers Union by Barker J. that;
[35] I consider, therefore, there is force in a submission made on behalf of the union in this case that s 414(6) should be construed with an understanding that under the FW Act the respondent has the right to engage in protected industrial action. Generally, the reason for industrial action is to cause a degree of inconvenience and expense to the employer as a legitimate bargaining tool. The fact that the applicant may suffer a loss of profits and its operation and staff may be inconvenienced is no reason of itself to find that a notice should as specific as the applicant in this case would like it to be. 18
[26] Notwithstanding this, s.424(1)(c) is concerned with circumstances where the FWC is satisfied that the protected industrial action has threatened, is threatening, or would threaten to endanger the life, personal safety or health for the welfare of the population of all or part of it.
[27] The Full Bench in NTEU v University of SA held that in relation to s.424(1);
[8] Within the scheme of the Act, the powers in relation to the suspension or termination of protected industrial action are intended to be used in exceptional circumstances and where significant harm is being caused by the action. This is clear from the Explanatory Memorandum to the Fair Work Bill 2008:
The Bill recognises that employees have a right to take protected industrial action during bargaining. These measures recognise 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.
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.
[paras. 1708-1709] 19
[28] The Full Bench in NTEU v Monash University expanded on how the section is to be implemented by the FWC and held the following;
[20] In NTEU v University of South Australia we do not consider that the Full Bench, by its use of the expressions “exceptional circumstances” and “significant harm” in the passages quoted in the Decision, was intending to establish criteria or tests in substitution for or in addition to those found in the language of s.424(1) itself. Rather the Full Bench used those expressions only to characterise the legislative intention that could be gleaned from the Explanatory Memorandum to the Fair Work Bill 2008. It is no doubt the case that the circumstances which would satisfy the criterion in s.424(1)(c) are likely to be exceptional in the sense of being atypical and out of the ordinary, and that a threatened endangerment to life, personal safety, health or welfare under the subsection may well involve the affliction of significant harm. However, that does not mean that in determining any particular case, expressions of that nature not to be found in the actual language of the statute should be determinative of the outcome, and we do not understand the NTEU v University of South Australia to stand for any contrary proposition. 20
[29] The Full Bench in Victorian Hospitals Industrial Association v Australian Nursing Federation(No. 2) considered similar issues and made clear “there must be an appropriate evidential basis to found such satisfaction” 21. The Full Bench also found the requisite evidential basis is met even where the impact of the bans varies between locations and noted relevantly that in such case,
[54] In considering the impact of the protected industrial action across the Victorian public health system, we are mindful of the fact that the impact will be different in the case of individual health services and patients. Some hospitals might be able to cope with the industrial action more effectively than others. Some patients might be more adversely affected than others. For some patients the adverse impact may be minimal, whilst for others the impact may be more serious. 22
[30] In this particular case, the evidence demonstrates four characteristics of the industrial action;
● There are bans on recording data into SAMS;
● While teachers are recording roll data manually, they are not prepared to make that information available to persons not involved in the industrial action until the end of the dispute;
● Teachers are not prepared to cooperate with persons not involved in the industrial action to take class rolls;
● The industrial action will continue indefinitely.
[31] From these characteristics, the CPE submits there are the following deleterious consequences for the community, from which, it is said, springs the endangerment to the population or part of it;
● In the absence of daily class roll information, schools cannot exercise their duty of care about absent students, either in the course of the day, or after it has finished (since the school will not know whether a student has attended partially or at all, and will not know where a student can be found);
● In the absence of daily class roll information, schools cannot exercise their duty of care during emergencies, or at the end of the day when parental custody exchanges may need to be supervised by teachers;
● The indefinite nature of the class roll protected industrial action combined with the unavailability of class roll information until the end of the dispute will impact on decisions that need to be made at the start of the 2014 school year, since 2013 student histories will be incomplete. This diminishes a school’s ability to identify and manage “at risk” students transferring into a school at the start of the school year;
● The indefinite nature of the class roll protected industrial action significantly amplifies the risk of harm to children. Proceeding on manual “workaround” procedures for an extended time is prone to error, and absences that would otherwise be identified or addressed through SAMS will be overlooked.
[32] I note in relation to these issues that there is not evidence before me that would indicate there is a universal application of the bans. Instead, the evidence as presented illustrated how the bans applied in certain situations, from which extrapolations are made about the system-wide effect of the Class Rolls protected industrial action. The AEU-NT did not dispute the evidence arising from this approach or suggest that the extrapolation was not valid to make.
[33] The indefinite nature of the protected industrial action, combined with the measures of the AEU – NT to withhold manually collated information (as well as instructing participating members to not allow non-participants to collect class attendance information), creates a level of risk that requires consideration. As noted above, while the AEU-NT submits it is prepared to allow changes on the ground to both these matters, the Union’s submission is contrary to its statements to members and the evidence before me does not suggest that the Class Roll protected industrial action is being implemented other than in accordance with the union’s public statements. There was a level of ambiguity to the union’s submissions in this regard. It was not clear what was being proposed or not, and their proposals did not progress to the level of an undertaking with certainty about how the union would modify its industrial action into the future. While I take account of the union’s submissions on these matters, I do not give as much weight to those statements as the other material before me in relation to the risks to the community.
[34] The Full Bench in VHIA v ANF (No. 2) noted that in assessing risk to “the personal safety or health”;
[51] We were taken in the proceedings to previous decisions of FWA and its predecessors regarding the meaning of the terms in s 424(1), including the references to “welfare” of the population and the concept of endangerment. These are commonly used words and expressions which are widely understood in the community and which should be given their ordinary meaning. Conduct that puts a person’s physical or mental state at risk of material detriment — or that materially hinders or prevents improvement in a person’s poor physical or mental state — may qualify as conduct that endangers personal health or safety. Although the conduct might not be of such a serious nature as to amount to an endangerment to “life”, it might nevertheless be such as to constitute a significant risk to “personal safety or health”. Conduct that delays or puts off the efficient supply of public health services has the capacity to impact adversely upon the welfare of at least some of the persons who require those services. The impact of the conduct must, however, be more than merely to cause inconvenience to the persons concerned — it must be such as to expose them to danger. 23
[35] The Full Bench further noted that the protected industrial action would be likely to increase delays and exacerbate difficulties for management to deal with them. Further, it was noted that the increased likelihood of such occurrences would have the effect of putting the welfare and safety of patients at risk and jeopardise their health and add extra pressure to a system already under pressure. 24
[36] Likewise, the Full Bench in NTEU v Monash University noted that in relation to an indefinite results ban that;
[28] The indefinite nature of the Results Ban will necessarily aggravate its potential and actual effects on students. A results ban with a defined duration, even a relatively long duration, would allow students to adjust their expectations and framework of thinking, knowing as they would that they would eventually receive their results on or about a certain date. Practical accommodations between the University and students concerning matters such as supplementary examinations and pre-requisite courses could be reached on the basis of an identifiable timeframe for the receipt of results. By contrast, an indefinite ban means that students who have not, for whatever reason, been able to access the exemptions regime are left in a position of complete uncertainty as to when they might get their results. This makes both psychological and practical adaptation to the situation difficult. The Results Ban has currently only affected Semester 1 results, but there is no reason to think that if it continues it will not ultimately affect Semester 2 results, with compounding effects on students’ academic progression into 2014 and even beyond. This makes it difficult to avoid the conclusion that there will be at least a future threat of endangerment to student health and/or welfare in respect of the three matters identified by the University. 25
[37] Having considered these matters, I am satisfied on the basis of the evidence that the protected industrial action being engaged in by the AEU-NT and its members is threatening or would threaten to endanger the personal safety or health, or the welfare, of persons using public education services in the Northern Territory.
[38] The evidence shows, and I find, that schools rely upon the class rolls information in order to exercise their duties of care; that they need regular and timely access on a daily basis to the information; that management based work-arounds may be prone to error; and that the indefinite nature of the Class Rolls ban amplifies the risks.
[39] The CPE seeks an order suspending the protected industrial action for a period of six months and seeks the order extend to all industrial action authorised by the Protected Action Ballot Order.
[40] As noted in NTEU v Monash University, the FWC has a discretion as to whether it makes a suspension or termination order.
[54] As a result of our conclusion that the s.424(1)(c) criterion has been satisfied in a number of respects, we are required by the Act to make an order suspending or terminating protected industrial action. The only protected industrial action to which the required order may apply is that which we have found satisfies the s.424(1)(c) criterion - that is, the Results Ban only. However, once such an order is made, any other industrial action notified by the NTEU ceases to be protected by reason of s.413(7). 26
[41] In considering this matter, while noting the pessimism of the CPE about the prospect of the proposed enterprise agreement currently out for ballot, there is insufficient evidence before me to suggest there is no prospect of agreement in some form in the future. Likewise, while I have found the current protected industrial action meets the statutory criteria of s.424(1)(c) it is not inconceivable that bans of some type could be implemented with effect in the future against the employer, but in a way that does not create the endangerment to the population or part of it envisaged by the section.
[42] After consideration of all the material before me, I consider it appropriate to order a suspension to the protected industrial action, however the order will be limited to the action encompassed by the Class Rolls ban, which is the industrial action I have found to have satisfied the s.424(1)(c) criterion. Even so, and consistent with the Full Bench’s findings in NTEU v Monash University referred to above, the practical effect in this case, is to mean the effect of such an order once made, is that any other industrial action notified by the AEU-NT ceases to be protected by reason of s.413(7) of the Act.
[43] In the hearing, the CPE pressed for suspension of industrial action for six months from the date of the Order (which means the suspension would operate until the start of June 2014), or in the alternative, for two months from the start of the school year (which means the suspension would operate until the beginning of April 2014).
[44] The AEU – NT rejected the possibility of either time period for a possible suspension, noting that it considered the CPE’s submission of time periods are to do only with the administrative issues associated with the 2014 school year.
[45] Having regard to the evidence before me, and the needs of both parties for the conduct of the ballot presently underway for a proposed enterprise agreement and progression of negotiations in the event the proposed agreement ballots does not succeed, I have determined to make an order suspending the protected industrial action for a period of three months commencing at 8 AM on 3 December 2013.
[46] An Order to this effect has been issued by me on 2 December 2013 giving effect to this decision. 27
[47] I note that after the giving of this decision in transcript on 2 December 2013, which included my indication of the Order that would follow from my decision, and before the time at which the Order was issued, Mr Clisby for the AEU-NT contacted my Chambers and expressed concern about the ability of the union to comply with the Order by the time I had advised. At my direction, my Associate contacted the CPE representative, Mr Hathaway, to ascertain his views about the matters raised by the AEU-NT. The CPE advised my Associate that the Commissioner for Public Employment had already taken steps to communicate this decision and the Order which would flow from it in a bulletin to all schools and teachers.
[48] Consequently, I directed that the Order should be issued unamended, since I held the view that it would not be practical to make an amendment to the Order at such late stage. In doing so, I requested both parties to use their best endeavours through bulletins, the internet and social media over the course of the remainder of 2 December and in the morning of 3 December to ensure all affected parties know of the effect of the Order.
COMMISSIONER
Appearances:
Mr P Brennan, Mr B Mappas, Mr M Hathaway and Ms S McMaster for the Commissioner of Public Employment
Mr P Clisby, Mr S Pelizzo and Mr M Cranitch for the Australian Education Union - Northern Territory Branch
Hearing details:
2013.
Melbourne:
November 28 and 29.
1 Draft Order filed by CPE, 2 December 2013
2 PR542639
3 SAMS is the Department of Educations’ Student Administration Management System database
4 Exhibit A1, p2
5 From Exhibit A3
6 Exhibit A1, p3 - AEU Update 8
7 Exhibit A1, p17 - AEU Update 9
8 Exhibit A1, p23 - AEU Memorandum, 26 November 2013
9 Witness Statement, Marion Guppy, para 4 and 16
10 Ibid, para 17
11 Witness Statement, Graham Chadwick, para 3
12 Ibid, paras 8 - 11, 14
13 Witness Statement, Stephen Pelizzo, para 8
14 Ibid, para 9
15 Ibid, para 10
16 Ibid, para 12
17 Exhibit A1, p17 - AEU Update 9
18 196 IR 103, at [35]
19 [2010] FWAFB 1014, at [8]
20 [2013] FWCFB 5982, at [20]
21 Victorian Hospitals Industrial Association v Australian Nursing Federation (No. 2), (2011) 214 IR 148, at [49]
22 Ibid, at [54]
23 Ibid, at [51]
24 Ibid, at [55]
25 [2013] FWCFB 5982, at [28]
26 Ibid, at [54]; the Full Bench noted that the finding in the final sentence flows from Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 at [69]-[72] per Lander J, [128]-[130] per Buchanan J, [179]-[180], [182] per Perram J
27 PR545220
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