Secretary, NSW Department of Education v The Australian Education Union New South Wales Teachers Federation (NSWTF) Branch

[2021] NSWSC 1628

Supreme Court

New South Wales

Medium Neutral Citation:	Secretary, NSW Department of Education v The Australian Education Union New South Wales Teachers Federation (NSWTF) Branch [2021] NSWSC 1628
Hearing dates:	3 December 2021
Date of orders:	3 December 2021
Decision date:	03 December 2021
Jurisdiction:	Common Law
Before:	Dhanji J
Decision:	Summons to be issued.
Catchwords:	CIVIL PROCEDURE – ex parte – show cause summons – alleged contravention of dispute orders – leave granted to issue show cause summons
Legislation Cited:	Industrial Relations Act 1996 (NSW)
Category:	Procedural rulings
Parties:	Secretary, NSW Department of Education (Plaintiff) The Australian Education Union New South Wales Teachers Federation (NSWTF) Branch (Defendant)
Representation:	Counsel: I M Taylor SC (Plaintiff) Solicitors: Crown Solicitor’s Office (Plaintiff)
File Number(s):	2021/344006
Publication restriction:	Nil

EX TEMPORE Judgment (REVISED)

1. HIS HONOUR: This is a summons brought by the Secretary of the Department of Education. The matter has proceeded before me today on an ex parte basis. The defendant in the matter is The Australian Education Union New South Wales Teachers Federation (NSWTF) Branch, generally known as the NSW Teachers Federation.

2. The plaintiff seeks the following orders:

1. The issue of show cause summons in the form that has been filed with the summons before me.

2. An order that the show cause summons be returnable at 10am on Monday, 6 December 2019.

3. An order pursuant to rule 1.12(1) of the Uniform Civil Procedure Rules abridging the time for service of the show cause summons to 4:30pm on Friday, 3 December 2021.

3. The summons seeks a further order which is, however, not pressed before me today and that is imposition of a monetary penalty in accordance with ss 139(3)(e) and 139(4) of the Industrial Relations Act 1996 (NSW) as the Court thinks appropriate in all the circumstances.

4. The short background is as follows:

5. On 27 November 2021 the State Council of the defendant met and directed all its members to strike for 24 hours on 7 December 2021. On 27 November 2021 the dispute came before the Industrial Relations Commission and Commissioner O'Sullivan made orders:

“A. Pursuant to s.137 of the Industrial Relations Act 1996 the Commission makes the following orders:

“1.    The Australian Education Union New South Wales Teachers Federation (NSWTF) Branch ['the Federation, its officers, employees, agents and its members employed in the Teaching Service, are hereby ordered to immediately cease organising and refrain from taking any form of industrial action that relates to the Federation's current wage claims for employees of the Teaching Service, including the 24 hour strike to occur on 7 December 2021, and including, but not limited to, any other strike, stop work meeting, ban, relieving ban, limitation or restriction on the performance of work and are further ordered to not recommence, engage in or threaten to engage in any such industrial action whilst these orders are in force.

2.   The Federation shall by no later than 4pm on 30 November 2021 issue a public statement which retracts and revokes its:

a)    direction to members to strike for 24 hours on 7 December 2021;

b)    its call on members from Greater Sydney, Newcastle, The Central Coast, Wollongong, the Southern Highlands and the Blue Mountains to rally in Macquarie St, Sydney and for all other members to rally at designated regional centres across the state on 7 December 2021; and

c)    its call on officers, councillors, association executive, fed reps, Women's contacts and FWC members to mobilise the membership.

3.    Without limiting the steps required to be taken by order 2, the Federation must take the following steps by 4pm on 30 November 2021:

a)    remove any reference to the 24-hour strike to occur on 7 December 2021 from its website or any documents linked to its website including the document titled "Why we must take industrial action over salaries and workloads" dated 27 November 2021 and the media release titled "Teachers to strike over workload, salaries, and shortages" dated 27 November 2021;

b)    remove any reference to the 24-hour strike to occur on 7 December 2021 from the morethanthanks.com.au website.

c)    publish in a prominent position on its website and the morethanthanks.com.au website, the Federation's Facebook and Twitter pages, Order A1 and a direction to members that they comply with those orders and not take industrial action during school hours.

d)    Take all reasonable steps to send by email and mobile telephone message to all members of the Teaching Service a link to Order A1 and a direction to comply with those orders and not take industrial action during school hours,

4.    The Federation, its officers, employees and agents, must not induce, advise, authorise, support, encourage, direct, aid or abet members of the Federation to organise or take industrial action contrary to Order A1.

5.    Federation members of the Teaching Service must not induce, advise, authorise, support, encourage, direct, aid or abet other members of the Federation to organise or take industrial action contrary to Order A1.

6.    These orders shall come into effect on and from 4:00pm on 29 November 2021 and shall remain in force until 4:00pm on 31 May 2022.

B. Pursuant to s 136(1) of the Industrial Relations Act, the Commission makes the following directions:

1.    The Federation must, by no later than 5:00pm on 29 November 2021, provide or cause to be provided a copy of Orders AI, A2, A3, A4, A5, A6 and A7 above to Federation Representatives employed by the Notifier, all members of the Federation Executive and all members of the Federation State Council.

2.    The Federation must advise the Notifier's legal representative in writing by 4:00pm on 2 December 2021 of the steps taken to comply with Orders A2, A3 and A4 above, including the form of communications, and if written, a copy of any communications, and the further steps it intends to take (if any) to comply with Order A2, A3 and A4 in respect of any relevant member who, by that time, has not been notified."

6. In short, it can be seen from the orders that there was an order to the effect that the defendant, its officers, employees, agents and its members, immediately cease organising and refrain from taking any form of industrial action relating to the Federation's current wage claims for employees, including but not limited to, the proposed strike on 7 December 2021. As can also be seen, the orders also placed positive obligations on the Federation with respect to the proposed action.

7. The affidavit of Ms Archibald of 3 December 2021 was read in support of the summons and, in addition to the above matters, that affidavit establishes, at least to a prima facie level, that the defendant is in breach of those orders and indeed has indicated, in somewhat strident terms, an intention to proceed with its action, notwithstanding the orders of the Commission.

8. My role in determining the summons before me is not, in any way, concerned with the merits of the defendant's action in the broader sense. Nor am I concerned with the determination of a breach or what consequences ought to flow from any such breach. The task before me is governed by s 139 of the Industrial Relations Act:

139      Contravention of dispute order

(1)     The Supreme Court, on application, must deal expeditiously with an alleged contravention of a dispute order. The application may be made by the person who applied for the order or any other person who was authorised to apply for the order.

(2)     Before dealing with an alleged contravention of the order, the Supreme Court is required to summon the person alleged to have contravened the order to show cause why the Supreme Court should not take action for the contravention.

9. As can be seen, the Court is required to deal expeditiously with an alleged contravention of a dispute order. There is an alleged contravention. I am told and I accept that the usual way of proceeding in this event is for the plaintiff to commence proceedings ex parte. I note that the plaintiff's solicitors have foreshadowed this proceeding to the defendant. Further, I accept, given the nature of the determination essentially being one that will result, if successful, in the issue of process, that the defendant is not prejudiced by not being heard.

10. Subsection (2), as can be seen from the extract above, requires the Court before dealing with any alleged contravention to summon the person alleged to have contravened the order to show cause why the Supreme Court should not take action for the contravention. The plaintiff seeks to have the summons issued and returnable on Monday, it now being 20 to 4 on Friday afternoon.

11. I am told, however, that should the matter be made returnable Monday it is anticipated that the proceedings before the Court will be in the nature of a directions hearing with any contest with respect to the ultimate relief sought being determined at a later stage and in all events after the proposed strike action should it proceed.

12. In those circumstances, it is my view it is appropriate that the summons be issued.

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Decision last updated: 14 December 2021