Secretary, Department of Education & Early Childhood Development (Victoria)vAustralian Education Union

[2010] FWA 3775

[2010] FWA 3775

FAIR WORK AUSTRALIA

EX TEMPORE REASONS FOR DECISION

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

Secretary, Department of Education & Early Childhood Development (Victoria)
v
Australian Education Union
(C2010/3560)

SENIOR DEPUTY PRESIDENT KAUFMAN MELBOURNE, 13 MAY 2010

Application to stop or prevent industrial action – whether service on a registered organisation sufficient service on employees – whether refusal to perform “NAPLAN testing” for philosophical reasons constitutes industrial action.

These reasons for decision are an edited version of the ex tempore reasons I gave on 4 May 2010.

[1] The Secretary, Department of Education and Early Childhood Development for the State of Victoria has applied for an order pursuant to s.418 of the Fair Work Act 2009 (FW Act). The order would require the Australian Education Union, its delegates, officers, employees and agents not to organise, procure or otherwise be involved with the taking of what is alleged to be unprotected industrial action by its members employed in Victorian government schools as teachers, principals and education support class employees. The order would also require those employees not to engage in the alleged unprotected industrial action. I note that s.2(4)(3) of the Education and Training Reform Act 2006 (Vic) (ETR Act) provides that for the purposes of that Act there shall be employed by the Secretary on behalf of the Crown in the teaching service the employees the subject of this application.

[2] Mr Parry SC, with Mr J. Tracey of counsel, appeared for the applicant and Mr M. Irving of counsel appeared for the AEU but, he announced, not its members, delegates, officers or employees. Permission was granted to Mr Forbes of counsel to appear for the Fair Work Ombudsman as intervener and only in relation to the form of any order that might be made.

[3] Section 418 requires Fair Work Australia to make an order if it appears to it that industrial action by one or more employees or employers that is not, or would not be, protected industrial action is happening or is threatened, impending or probable, or is being organised.

[4] The order that Fair Work Australia upon being so satisfied is to make is that the industrial action stop, not occur or not be organised, as the case may be, for a period specified in the order. It is not disputed in this matter that the employees concerned are national system employees employed by a national system employer such that s.418 of the FW Act applies. Nor is it contentious that the AEU and the relevant employees are covered by two agreement based transitional instruments, the nominal expiry dates of which have not yet been reached. The contentious issue is whether the activity that is being planned for 11, 12 and 13 May 2010, and possibly further, would be unprotected industrial action. Again, it seems to me to be not in contention that if the activity is properly characterised as industrial action it will not be protected industrial action.

[5] Mr Parry in his outline of submissions described the background to, and the nature of, the activity planned for next week. I take the following from the relevant portions of his submissions:

Victorian teaching service employees as part of the performance of their duties and in accordance with the applicant’s directions are required to conduct and perform tasks in relation to the administration of a national assessment program-literacy and numeracy, otherwise known as the ‘NAPLAN’ tests. NAPLAN is a program of testing conducted in all Australian schools involving the testing and assessment of the reading, writing, language conventions (spelling, grammar and punctuation) and numeracy skills of all students in years 3, 5, 7 and 9. NAPLAN tests are due to take place on and about 11, 12 and 13 May 2010. These are tasks such employees have performed in previous years, falling within the normal and typical duties of such employees and required to be performed by government teachers in all States and Territories.

[6] Again I take it that the description of the NAPLAN tests and the role of the employees in it are not contentious. It is also clear that the AEU, which has what I will describe as a philosophical objection to the use to which the results of the NAPLAN tests are intended to be put, seeks to instruct and persuade its members not to conduct or perform the tasks that they are required to undertake to enable the NAPLAN tests to be conducted on 11, 12 and 13 May 2010. The evidence of Anthony John Bugden, the General Manager, Human Resources of the Department of Education and Early Childhood Development makes it clear that the AEU seeks to have its members refrain from performing any work in association with the NAPLAN tests that are to be conducted on 11, 12 and 13 May 2010, as well as any catch up testing that may occur in some schools on 14 May.

[7] To Mr Bugden’s statutory declaration 1 he attached a 19 January 2010 resolution of the AEU Federal Council, a 12 April 2010 resolution of the AEU Federal Executive and an AEU NAPLAN kit published on the website of the Victorian branch of the AEU. Although the AEU in its publications refers to a national moratorium on the implementation and administration of NAPLAN 2010 it is apparent that the moratorium is a ban to be implemented by its members on the implementation or administration of the NAPLAN tests in any way. That is apparent from attachment AJB4 as well as other documents.

[8] Despite the moratorium having all the hallmarks of industrial action as it is commonly understood, Mr Irving submitted that the refusal by AEU members to participate in or perform work in relation to the forthcoming NAPLAN testing does not fall within the definition of industrial action in s.19 of the Act, nor does the action of the AEU in seeking to organise that action. Section 19 defines industrial action in a manner that is readily understood and in a form which has been found in the predecessors to the FW Act for many years. There is a note to s.19 which reads:

In Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited PR946290, the Full Bench of the Australian Industrial Relations Commission considered the nature of industrial action and noted that action will not be industrial in character if it stands completely outside the area of disputation and bargaining.

[9] In Mr Irving’s submission, because the action that is proposed to be taken stands completely outside the area of disputation and bargaining, the action is not industrial. He emphasised his submission by observing that the action that is being taken is against the use to which the Victorian government, as well as other governments, intends to put the NAPLAN results, specifically, a national ranking or league table. The demand by the AEU that the government not do so is not directed at the Secretary, allegedly the employer, who does not have the capacity to accede to the demand. Thus, in Mr Irving’s submission, the action cannot be industrial in character. There is no disputation or bargaining between the AEU or its members and the employer of its members.

[10] Having regard to the terms of s.2(4)(3) of the ETR Act it is not clear to me that the Secretary is the employer rather than merely the agent through whom the Crown employs the relevant employees. I do not need to decide this point. In any event, in an industrial relations, sense the Victorian government is the employer.

[11] I do not accept Mr Irving’s submission that the action is not industrial action because it is not directed against the employer. The note to s.19(1) of the FW Act refers to The Age Company Limited v The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia 2 (The Age case) and in my view that should be the starting point for the consideration of Mr Irving’s submission that the action stands completely outside the area of disputation and bargaining and is not industrial.

[12] Although The Age case dealt with the Workplace Relations Act 1996 (WR Act), the definition of industrial action is relevantly the same. It is necessary to go to the reasons for decision of the Full Bench because in my view, as Mr Parry submitted, the note to s.19 of the FW Act does not accurately reflect the relevant part of the decision. The relevant portions of the Full Bench’s decision in The Age case appear at paragraphs [45] and [46]. That case involved an allegation by the CEPU that The Age newspaper had engaged in unprotected industrial action by terminating the employment of its employees by way of redundancy.

[13] At paragraph 45 the Full Bench said:

In a statutory context which is concerned with industrial disputation and enterprise bargaining it might fairly easily be concluded that a definition of industrial action is intended to be confined to action which occurs in the course of an industrial dispute or bargaining in relation to a demand concerning the conditions to be afforded by an employer to its employees. If such were the case however, as counsel for the unions pointed out, so called political strikes may not be amenable to an order pursuant to section 127, a conclusion at odds with a number of Commission decisions and with the decision of the Federal Court in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and another v Commissioner Laing of the Australian Industrial Relations Commission and Another (Laing) 3.

[14] At paragraph 46 the Full Bench went on:

It seems to us likely that the legislature did not intend to include conduct which stands completely outside the area of disputation and bargaining and that accordingly the definition should be read giving some weight to the word industrial, but precisely how far this qualification might extend is a question of degree. We do not think it is desirable that we go further than is necessary to decide this case. As is clear we have not found it necessary to go beyond the words of the definition.

[15] I observe later that I don’t go beyond the words of the definition either. It is readily apparent, contrary to what is stated in the note to section 19 that the Full Bench did not note that action will not be industrial in character if it stands completely outside the area of disputation and bargaining. Political strikes to which the Full Bench referred constitute such action. In Laing,which was referred to by the Full Bench, the case was concerned with a campaign of work stoppages and so on as well as picketing with the objective of opposing the passage by the Western Australian Parliament of the Labour Relations Legislation Amendment Bill 1997 (WA).

[16] In Laing, the Australian Industrial Relations Commission had made orders under s.127 of the WR Act prohibiting members of the CEPU taking part in industrial action. In the Federal Court, on remittal from the High Court, on an application for a prerogative writ by the union, French J, as he then was, discussed the proposition that some issues not arising out of the employer/employee relationship were not industrial. It was to these comments that the Full Bench in The Age case had referred. Amongst other questions his Honour posited “Can s.127, consistently with its express terms, be applied to stop or prevent communication concerning government or political matters?”

[17] Under the heading ‘Conduct to which s.127 expressly applies’ his Honour said:

The Australian Industrial Relations Commission is empowered by s 127 of the Workplace Relations Act only to make orders relating to “industrial action”. The definition of “industrial action”, in its various aspects, confines it to bans, limitations or restrictions on the performance of work or on acceptance of or offering for work, failure or refusal to attend or perform work and performance of work in a manner different from that in which it is customarily performed.

The conduct which may be stopped or prevented by an order under the section is limited to that which affects the performance, the acceptance of or the offering for work. It may extend to strikes, stopwork meetings, work to rule or go slow practices. It is not confined to stoppages.

[18] His Honour cited Metal Trades Industry Association of Australia v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 4. He went on:

The class of conduct to which the section applies is further narrowed by the requirement that as ‘industrial action’ it related to an industrial dispute, negotiation or proposed negotiation of agreement under Division 2 of Part VII(B) or work that is regulated by an award or a certified agreement. That is to say it must have a relation to the matters specified in subparagraphs (a) to (c).

This is a slightly different requirement to that with which I am presently concerned, but relevantly the principles apply.

[19] His Honour went on:

Notwithstanding these limitations, it has been said and in my opinion correctly, that for the purpose of s 127 “industrial action” is widely defined.

[20] His Honour quoted Coal and Allied Operations Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union 5(Coal and Allied Operations) and went on:

It extends to conduct by way of communication. While para (a) of the definition relates to the “performance of work”, para (b) is more broadly expressed. It refers to “a ban, limitation or restriction on the performance of work, or on the acceptance of or offering for work …”. The central meaning of the term “ban” in the industrial, as in its ordinary, usage is to “prohibit or interdict”: Macquarie Dictionary. Communication between persons or an organisation and persons is essential to a “ban”. And while the notion of “limitation” or “restriction” may have a meaning related to manner of actual performance of work, that meaning is picked up in para (a) of the definition. Under para (b) it extends to the communication of a limitation or restriction. Communication picked up under paras (b) and (c) must no doubt purport to be at least hortatory, if not authoritative and binding, upon the person or persons to whom they are directed.

In the ordinary course such communication will be verbal whether oral, written or in electronic form. Being intended to affect or affecting the performance of work it is industrial action because of its instrumental character. Notwithstanding that it is communication it falls within the terms of the definition.

So communication can be industrial action. And industrial action, verbal or non-verbal, can be communication in a wider sense. The withdrawal of labour because of an industrial dispute may be seen as a signal from employee to employer of a grievance or as underlining, from the employee's perspective, the seriousness of a grievance which has been communicated verbally. To say that industrial action sends a signal to the employer or communicates in this sense is not to take it out of the class of conduct to which s 127 implies.

Industrial action may be caught by the section notwithstanding that it is intended to send a signal or communicate some message other than about a dispute with the employer. It is not necessary for the application of s 127 that it relate to an industrial dispute if it relates to work regulated by an award or a certified agreement. Thus employees might stop work without the authority of their employer and in breach of their contract of employment in order to attend a rally at Parliament House or some other form of demonstration or public meeting to express views about some issue not arising out of their relationship to their employer. In such a case where their work is regulated by an award or a certified agreement, s 127 is capable of application.

[21] It is the last two paragraphs which are particularly apposite to this application, but it is necessary to place them in their context. Mr Irving submitted that it is necessary to look at the purpose of the action in order to determine whether it is industrial action. He referred to paragraph 90 of the Fair Work Bill 2008 Explanatory Memorandum (EM) and its reference to the note to s.19. Paragraph 90 of the EM reads:

The legislative note at the end of subclause (19)(1) alerts the reader to the decision of the AIRC in The Age case. The note is included to clarify that the definition of industrial action is only intended to cover actions that have an industrial character and occur within the area of disputation and bargaining.

Given my finding that the note does not accurately reflect the decision in The Age case, I give less weight to the EM on that point than I might normally.

[22] Mr Irving also referred to Construction, Forestry, Mining and Energy Union v Coal & Allied Mining Services Pty Limited (Mount Thorley Operations/Warkworth Mining) 6, a recent Full Bench decision of the Australian Industrial Relations Commission where it was held that where an employer prevented its employees from working until they had complied with its drug screening policy, it did not constitute a lockout as defined in s.420 of the WR Act. It should be observed that although the note to s.420 referred to The Age case it is not the same as the note to s.19. It is worthwhile reading the note to s.420 which is set out at page 2 of the reasons for decision of the Full Bench:

The issue of whether action that is not industrial in character was considered by the Commission in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v The Age Company Limited, PR946290. In that case, the Full Bench of the Commission drew a distinction between an employee who does not attend for work in support of a collective demand that the employer agree to alteration of the conditions of employment as being clearly engaged in industrial action and an employee who does not attend for work on account of illness.

[23] Indeed, the question of whether not attending because of illness was industrial action was discussed in arguendo with Mr Irving. It was in that context that the Full Bench in Warkworth observed at paragraphs [13] and [14]:

Strictly speaking the observations made by the Full Bench are obiter dicta.

The Bench there was referring to The Age case. It goes on:

However, Note 2 to s.420(1) demonstrates that the legislature intended the approach outlined by the Full Bench in The Age Company case to guide the construction of s.420 and we adopt it.

And at paragraph 14:

Accordingly the definition of “industrial action” in s.420 must be read giving some weight to the word “industrial” and conduct will not constitute a “lock-out” within the meaning of s.420(1)(d) and s.420(3) unless it has an industrial character in determining whether any given action has such a character it is necessary to consider the purpose of the conduct said to constitute industrial action

[24] Whilst it is tolerably clear in my view that an employee who absents himself or herself from work due to illness would not be engaging in industrial action that does not answer the question of when action is indeed industrial action, or has that industrial character. In this case I am comfortably of the view that the action, the subject of the application, is industrial action. As I said in opening, it has all the hallmarks of industrial action as it is commonly understood. It is intended to be taken in support of demands by the AEU that the NAPLAN results not be used in a certain manner. It will result in employees not performing work they normally perform or performing work in a manner different from that in which it is customarily performed. It falls fairly and squarely within the definition in s.19(1) and in my view it is not appropriate to read that definition down. An order that the action stop and not occur and not be organised should be made.

[25] An issue has then arisen about to whom the order should apply. Mr Irving who appeared as I have said only for the AEU, submitted that any order should apply solely to the AEU as it was the only person served with the notice of the application and the proceeding. He submitted that it should not apply to members of the AEU, that is, to the relevant employees of the department. He went on to submit that it should also not apply to the officers, delegates and so on of the AEU because they had not been individually served. In Mr Irving’s submission it would be a denial of natural justice to make an order against the 25,000 or so employees without them having personally been served with notice of the proceedings. I disagree.

[26] Mr Parry submitted that the order should apply to the AEU and to its delegates, officers, employees, agents and members. I accept Mr Parry’s submissions that service on the AEU entailed sufficient notice to its members as well as its officers, delegates, employees and so on. The AEU is a registered organisation and has significant representational and other rights under the FW Act. Further, this matter is one of considerable notoriety, with orders having been made by several state tribunals as well as by Fair Work Australia in respect of employees in the Australian Capital Territory.

[27] Although Mr Irving professes not to appear on behalf of the members of the AEU he made submissions on their behalf to the effect that they have been denied natural justice. In my view, if the AEU had genuine concerns that its members should be heard in these proceedings it had, and has, a ready ability through the medium of its websites as well as other means, to have brought the fact of this application to their attention, albeit I accept that it had no such obligation. I note that to be registered as an organisation of employees the AEU must be and no doubt is, and I accept that it is, an association for furthering or protecting the interests of its members and in my view it sought to do so in the submissions made on 3 May 2010. On this issue Mr Parry referred me to several decisions of the former Commission and the Court in support of his proposition there had been no denial of natural justice. They seem to me to be conclusive on the point.

[28] I refer to them briefly. In Victorian Hospitals Industrial Association v Health Services Union 7, a Full Bench of the Australian Industrial Relations Commission, in referring to a Federal Court case8, observed:

The members of the Court are here expressing the view that proper notice of the proceedings must be given to anyone who is likely to be bound by the order and that if an order is made there must be adequate provision for the order to be brought to their attention. Their Honours did not discard the possibility that these requirements could be met by notification of the union concerned. It is clear from the passage that it is a question of fact in any particular case whether the union adequately represents the interests of the employees in the relevant respect. In this case there are a number of indications that the HSU did adequately represent the employees. The first is that the order is not binding upon employees generally but only upon employees who are members of the HSU.

I interpolate that that is to be the case here. The Full Bench went on:

It is to be inferred that the HSU had a ready and effective means of communication with its members.

[29] Again interpolating, the evidence in this case is that the AEU had, and has, such a means. The Full Bench went on:

The second is that there was ample evidence before the Commissioner that the HSU is acting on behalf of its members. Indeed, it never suggested to the contrary to the Commissioner and there is no evidence before us to support such a suggestion.

[30] I interpolate here. Despite Mr Irving’s appearance only on behalf of the AEU, the AEU being representative of its members, it seems to me that it had a duty which Mr Irving did seek to comply with, to act on behalf of its members. The Full Bench went on:

A copy of the draft order sought by the Health Services was served on the HSU with the application.

[31] Again I interpolate, that was done here. The Full Bench continued:

The Commissioner was entitled to conclude that service on the HSU was adequate service on the members of the HSU involved in the dispute. The terms of the order required the HSU to publish a notice giving details of the order on its websites, advise its delegates of the order and to provide them with a copy of the same notice. These measures seem to us to be adequate to bring the terms of the order to the attention of the HSU members concerned.

[32] Despite the case before the Full Bench being one that dealt with an application in relation to action that had taken place after the stop industrial action orders had been made, in my view the principles relating to natural justice are apposite. Similar comments were made by the Full Court of the Industrial Relations Court in Re Harrison 9 and were referred to by Mr Parry:

Ordinarily the Commission will be acting reasonably and in accordance with the dictates of natural justice if it relies on registered organisations to represent the interests of their members.  10

[33] In another Full Bench decision of the Australian Industrial Relations Commission, Pryor v Coal and Allied Operations Proprietary Limited 11, a conclusion to similar effect was reached and the relevant passage appears at page 305 where the Full Bench made similar observations in concluding that the employees of the employer had not been denied natural justice, albeit that in that case the union was representing not only itself but also the employees and its members.

[34] In Pryor, the Full Bench observed: that the PTU was an organisation of members registered under the WR Act; that it was an association for furthering or protecting the interests of its members; that in proceedings before the Commission an organisation is normally regarded as representing its members and their interests; and that the union did not say or otherwise indicate that it was not representing its members. This is different to what was submitted by Mr Irving in this matter. Despite Mr Irving having said this, it is necessary to temper what he said with the obligations of the union towards its members. Pryor was approved by another Full Bench in Allison’s case. 12

[35] Mr Irving submitted that the Fair Work Australia Rules 2009 require that the employees personally be served. To the extent necessary, albeit I do not think it necessary, I waive compliance with the rules in the event that I am wrong that it is not necessary that the employees be personally served.

[36] I am satisfied that the requirements of s.418(1) have been made out by the applicant and that an order should issue.

[37] An order bearing reference PR996760 was made on 4 May 2010.

SENIOR DEPUTY PRESIDENT

Appearances:

F. Parry, SC with J. Tracey of counsel, for the applicant.

M. Irving, of counsel, for the respondent.

J. Forbes, of counsel, for the intervener.

Hearing details:

2010

MELBOURNE

3, 4 MAY

 1   Ex. A1

 2 (2004) IR 133 197

 3 (1998) 89 FCR 17

 4 (1997) 77 IR 87 at 92 per Marshall J.

 5 (1997) 73 IR 311 at 321.

 6   [2008] AIRCFB 1159.

 7 (2008) 173 IR 120 at [25].

 8   Transport Workers’ Union of New South Wales v Australian Industrial Relations Commission (2008) 166 FCR 108.

 9   Re Harrison; Ex parte Reid (1995) 62 IR 280.

 10   Ibid at p.286.

 11 (1997) 78 IR 300.

 12   Allison v Tenix Defence Pty Ltd (2002) 112 IR 171, PR913519 at [65].

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